mankind. The will of the people under the Constitutionncan only mean the deliberate sense of the political communities,nthat is the states, that make up the United States,nexpressed through the republican mechanisms that arenestablished. This suggests that judicial review must benrelegated to a subsidiary role.nOriginal intent, properly speaking, is a legal and not anconstitutional idea. The original intent of a piece ofnlegislation may be juridically determined by reference to itsnlegislative history (though given the trickery and evasivenessnof recent Congresses this is not as simple as it might be).nHowever, “original intent” of the Constitution is notnsimilarly determinable because the intent was given to thenConstitution by the people who ratified it. An appeal to thenPhiladelphia convention, known chiefly through the partialnnotes of Madison, is not strictly analogous to an appeal tonlegislative history. The Constitution can be finally interpretednonly historically, not juridically. It is also importantnto note that the “original intent” of a particular provision ofnthe Constitution and the “original intent” of the Constitutionnin the large sense are different questions.nI have often heard members of Congress and other publicnofiEcers answer a constitutional question with the quip thatnthey are not constitutional lawyers. Nonsense! Members ofnCongress, the President, and more importantly, the peoplenand officials of the states have just as much standing inninterpreting the Constitution as any panel of lawyers or lawnprofessors, whether or not the latter have yet been appointednto the federal bench. The Founders never intended thatnthe high political questions of constitutional interpretationnwould be at the mercy of lawyers’ tricks.nThe Federalist justices of the early 19th century—nMarshall, Story, etc. —were legalists and devotees of thenBritish common law. In one of the most misguided feats innAmerican history, they infused judicial review into thenconstitutional fabric, believing they were providing a checknto unruly popular passions and lending stability to theninstitutions of self-government. But while they did inject antype of stability that was useful in the progressive commercialnsense, the law had a pragmatic and centralizingntendency that carried the emphasis away from the historicalnrights of the states and from the consent of the people. It isnnot difficult to understand why Jefferson feared the judiciarynas the greatest of all enemies of republican government.nThere is a piece of erroneous folklore, again dating ton19th century distortions of the Founding, that the Constitutionnis in the special keeping of lawyers. In fact relativelynfew of the Framers were practicing lawyers. Primarily theynoccupied their time as owners of plantations or other largenestates or as merchants (that is, not counter-jumpers butntraders on a large scale). They were also clergymen andneducators, among other represented professions. It is truenthat a good many were trained in law. Law was considered anuseful study which enhanced one’s ability to manage one’snown interests and participate in public life because it was anstorehouse of English traditions of order and liberty. However,nit was not considered, except by a few of the Framersnwho were not the most trustworthy, that a decent mannwould devote his primary attention to the daily practicenof law.nThe Founders recognized no aristocracies except those ofntalent, service, and social weight. They would regard thenConstitution today as the tools of an aristocracy of federalnjudges, drawn from a class of lawyers and law professorsnwhose study is not of noble traditions of liberty and ordernbut of the defense of large vested interests, whether of bignbusiness or the established left-wing causes of the NewnClass. It would be difficult to imagine any group, taken as angroup, more dissimilar to the great landowners and republicanngentlemen of the Founding than the choice legalnscholars of late-20th-century America. The former werenrepresentatives of their communities and the bearers ofnwisdom and vision. The latter are the representatives ofnvested interests and of arcane manipulations.nWe have here more than the elitist tendencies of 20thcenturynliberalism or “guardian democracy.” We are goingnto have to go back a lot further than the Warren Court ornthe New Deal to remedy the ill. An evolutionary captivitynof the Constitution was inevitable once the Constitutionnwas given over largely into the hands of lawyers and treatednprimarily as a legal document, the understanding of whichnwas to rest on the reasonings of judges.nThis was a major mistake that the Framers, for the mostnpart, did not expect. The Constitution was not intended tonbe, except in a subsidiary sense, a legal document. It wasnnot expected that it would be interpreted by lawyers (peoplenwho argue cases for pay) much less by law professors (peoplenwho teach others how to argue for pay). The Constitution isna political document. Lawyers and judges are qualified tondeal with legal matters. Study of the law per se, ornpursuance of legal procedures per se, will never yield annaccurate or lasting interpretation of the Constitution in thenlarge sense. Justice O’Connor recently observed that everynSupreme Court decision becomes, at the hands of clevernlawyers, raw material for a hundred new eases.nThis would be no great problem if we were merelyndealing with legal questions brought on by the complicationsnof modern society. But through the 14th Amendmentnand the usurpations of all three branches of the federalngovernment, every conceivable legal question has also beennmade into a constitutional question. And even if thisnprocess yields a workable rendering of particular clauses ofnthe Constitution, it should not be allowed cumulatively tondetermine the meaning of the Constitution itself.nWe know that the Constitution has changed and continuesnto do so. If we look into what Constitution deserves ournrespect, we find two current views. One view, put forth bynrecent Supreme Courts and their defenders, says that thenConstitution is an evolutionary document whose greatnvirtue lies in its adaptability. According to this, it followsnthat it is the right or even the duty of the Supreme Courtnfrom time to time to bring the Constitution “up to date.”nWe can hardly deny that the Constitution has changednand evolved. It has a history. However, from the observationnthat the Constitution must be viewed historically, itndoes not necessarily follpW that the Supreme Court shouldnbe the arbiter of that change. In fact, this would not havenbeen accepted by the main body of Founders.nThe other view of the Constitution current today is thatnwe are bound by its “intent” unless we want to amend it innthe proper way. The Founders, at least that majority whonwere not over-involved in a specific agenda, would not havennnDECEMBER 13871 15n