Enforcing the Social Contract: Original Intent
Members of the Constitutional Convention met in Philadelphia in secret, fearful that word of their proposals would escape and the public outcry would doom the new government from the start. When work was finally completed and the proposed constitution published, it spawned widespread, heated controversy. Debate about the new constitution uncovered deep divisions -- over the purposes of government, the dangers of majority rule, and the need to respect minority rights.
Many felt the new government was anti -- democratic. Of its three branches, it provided for direct election of only one part of one of them, the House of Representatives. The proposed constitution also created vast powers for the new national government, powers that many felt would be exercised at the expense of the more democratic, less remote state and local governments. How were these new powers to be defined and exercised, many wondered. And what, exactly, would be the relationship between the national government and the states?
Answers were not to be found within the four corners of the document itself; the proposed constitution did little to specify the powers it conferred or the relationships among the branches it created. That vagueness occasioned especially sharp criticism and contributed to the demand that a Bill of Rights be adopted by the first Congress, which would set limits on the powers of the national government.
I begin this chapter with an account of how Chief Justice Marshall undertook to establish and justify the Supreme Court's power of judicial review over Congress.1 Then I turn to the first theory of interpretation to be considered, original intent, and to two prominent defenders of originalism -- Robert Bork and William Rehnquist. In defending original intent, I argue, these judges assume a contractualist account of government that, when spelled out, is implausible on its own terms and unable to offer an attractive, workable conception of judicial review and constitutional interpretation.