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A 200-year debate about the US Constitution's `original intent'

ORIGINAL INTENT AND THE FRAMERS' CONSTITUTION by Leonard W. Levy New York: Macmillan 525 pp. $19.95 THE Supreme Court of the United States is a familiar political battleground. The ideological coloration of defenders and enemies has shifted with the times and the issues, but for two centuries, the court has been a desirable prize, eagerly sought by all sides. In truth, the battles over the court's activism are a sham; the results of that activism are the issue. Thomas Jefferson denounced the judiciary for decisions that sustained Sedition Act prosecutions in 1799 and became a lifelong antagonist of the courts. But Jefferson, never a hostage to consistency, welcomed the Bill of Rights in 1789 because he believed it offered a fruitful arena for judicial activism against legislative encroachments. Had the judges decided the Sedition Act and subsequent cases differently, Jefferson would have been happy with the judiciary.

Andrew Jackson, Abraham Lincoln, Theodore Roosevelt, Franklin D. Roosevelt, Richard Nixon, and Ronald Reagan had similar political needs for assaulting the judiciary; and all sought to put their own brand of activism on the courts.

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The original intention of the Constitution has been at the core of virtually every constitutional dispute since 1789, and the issue has been shamelessly exploited by liberals and conservatives alike. Nevertheless, there is a public perception that Robert Bork, Edwin Meese, and William Rehnquist have invented something called the ``jurisprudence of original intention,'' as if it were some new philosophical truth. They and their followers have played a major role in shaping a public opinion that views offensive Supreme Court decisions such as those involving free speech, race, the rights of the accused, and abortion, as somehow contradicting the Constitution's ``original intention.''

They have crossed swords with the most authoritative voice of American constitutional history, and he has left their cause in utter disarray.

Over nearly three decades Leonard W. Levy of the Claremont Graduate College has produced a succession of works that have been incorporated into the practical world of judicial decisions, as well as earning the highest accolades from his scholarly peers. His Pulitzer Prize-winning ``Origins of the Fifth Amendment'' is definitive. His recent, classic account of the Establishment Clause of the First Amendment undoubtedly will influence future religion cases. And for the bicentennial of the Constitution, Levy served as editor in chief of a magisterial four-volume ``Encyclopedia of the American Constitution.''

Levy is fully armed, acerbic, witty, and always profound. History is a serious battleground for him; shoddy, superficial, and partisan research and narrative have no standing on his playing field. Levy derides the Bork-Meese-Rehnquist view as simply purpose-ridden. ``[A]nyone who thinks that the Framers did not believe in sexual privacy, at least with respect to marital relations, has the historical imagination of a toad,'' Levy argues - so much for Bork's ``original jurisprudential'' view of abortions and the sale of contraceptives. Chief Justice Rehnquist blithely asserted that the Framers ``intended'' that the Establishment Clause of the First Amendment would not bar nonpreferential aid to religion. The evidence is clear and compelling that proponents of religion clauses - mostly evangelicals who despised established religions - opposed any aid.

Will Rehnquist and his future clerks continue to peddle ``history by hunch'' in the light of this and the Establishment Clause books?

The present ``conservative'' backers of a doctrine of ``original intention'' conveniently ignore the Framers' intention to severely limit presidential powers in foreign policy matters. The language of the Constitution itself is clear on this point. Alexander Hamilton also wrote in ``Federalist No. 75'' that the ``history of human conduct does not ... make it wise in a nation ... to commit ... its intercourse with the rest of the world, to the sole disposal'' of the President of the United States. Whatever his later views, Hamilton did not exactly imagine Oliver North, John Poindexter, William Casey, and any ``off the shelf'' operations, as brakes of accountability on presidential power. The ``Framers' Constitution'' makes abundantly clear that Congress had a significant stake in the creation and execution of foreign policy.

Making history whole against the pretensions of Bork-Meese-Rehnquist really is easy sport; in a jurisprudential sense, it also is beside the point. We never can fully know the intent of the Framers. As Levy emphasizes, our documentation is but a tiny fraction of the words and ideas circulating in 1787. James Madison's convention notes, however detailed, simply could not incorporate everything. Worse yet, the scanty, even corrupted, records of both the debates in the state ratifying conventions and the First Congress, leave us in conflict and confusion. Madison recorded remarks from relatively few of the 55 delegates to the Philadelphia Convention in 1787. Just whose intent are we talking about?

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Levy reminds us that we celebrate the judges and the judicial history that reflected John Marshall's dictum that ``We must never forget that it is a Constitution we are expounding.''

Levy once shrewdly observed that what the Framers said in the Constitution was ``far more important than what they meant.'' We have spent two centuries - rather successfully and peacefully - shaping and applying meaning to those important words.

Stanley I. Kutler is the E. Gordon Fox Professor of American Institutions at the University of Wisconsin. His book, ``Richard Nixon and the Age of Watergate,'' will be published by Alfred A. Knopf in 1989.

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