Original Intent
Professor Rakove's work is a must read for anyone interested in the idea of 'original intent'. In his opening chapter "The Perils of Originalism" he raises a couple of questions. Whose intent and understanding are we to look at, the Framers or the Ratifiers? Are we to look at specific individuals, just a few, or the entirety of those Framers and/or Ratifiers? Inasmuch as several of them changed their opinions over the course of their live, at what time in their life are we to look?
The next couple of chapters describe the road to the Philadelphia Convention and Madison's major role in making it happen. But it is the chapter entitled "Debating the Constitution" that is the meat of the topic.
The author notes that both sides "feared that cunning leaders would manipulate even well-meaning citizens." A note unwarranted idea considering what is occurring today. When considering discussions in the contemporary press one needs to keep in mind that the press was predominately Federalist, tho' several papers attempted to be somewhat even handed. Most people know that James Madison took copious notes, though not necessarily verbatim notes during the convention and that he, John Jay and Alexander Hamilton wrote the Federalist Papers, but Luther Martin, an Anti-Federalist who refused to sign the Constitution wrote a serial history of the Convention. His history is an 'account of its maneuvers and factions' which confirmed in the minds of many that "its secret history was a tale of subversion."
Among Madison's fears and Rakove quotes Madison regarding a 'public decision on a constitutional dispute': "could never be expected to turn on the true merits of the question." He feared that passions would overrule reason. [Again one could argue that this is currently occurring.] The author also notes that the writers of the Federalist Papers had their own doubts they left privately. "[D]oubts that left both men convinced that the Constitution might prove seriously, even fatally, flawed because it lacked key provisions each respectively favored." According to Rakove, Madison apparently felt it better 'to trust future experience to identify remediable defects in an adopted Constitution than to risk the uncertainty of a second convention.'
Rakove goes on to describe the various questions and debates during and after the Convention. Among the Anti-Federalist questions was: "which features of the Constitution were most likely to prove vulnerable to manipulation?
Rakove suggests in his section on "Madison and the Origins of Originalism" that the debate started even before ratification and continued after. During the first session of Congress there was a debate and one of the representatives wrote that another representative had spoken to 'Pubius' and Publius informed him that 'upon mature reflection he had changed his opinion' [regarding the issue of government officers removal by the president. When the Jay Treaty came up for approval Madison apparently had changed his mind about the House involvement in treaties. Rakove notes that when discussing the Treaty "the House was prepared to entertain interpretations reconstructing the positions of framers ratifiers and 'the people'". He continues "[t]he ensuing disagreements prompted a few representatives, on both sides, to suggest that recourse to historical evidence was futile."
Having earlier read 'Science and the Founding Fathers: Science in the Political Thought of Thomas Jefferson, Benjamin Franklin, John Adams, and James Madison" by Bernard Cohen I find a different light cast on 'original intent.' These were enlightened men, men of the enlightenment, who reasoned and adapted to changing times. They often referred to the new government as 'an experiment' which can lead one to believe they were able to change their opinions when new evidence came forth. Perhaps the "Original Intent" of the framers, aside from forming a stronger central government, was to create a 'living constitution' that would change with the times.