Design and Intent: Some Musing about the Constitution

We often conflate intentionality with design. However, even designers may not fully understand how what they have created will work.

Apropos of my two recent posts ( here and here) on Madison and the Philadelphia convention I started thinking about the issue of design and intent.

A simple observation is worth considering:  It is possible for something to work as designed while not necessarily working as intended.  Indeed, we confuse intention with design.  This is a rather important distinction, but one that is missed (because many conflate the two).  As such, when trying to understand the framing of the constitution we need to acknowledge that while we often make a great deal of the notion of “original intent” that that which was actually deployed in terms of the design of the constitution does not necessarily comport with what the Framers thought they were creating.

A few examples comes to mind:

1) The House of Representatives. Many of the Framers assumed that the House would be a chamber would be heavily influenced by the passions of the masses and therefore would have frequent turnover in its membership. However, intent did not play out as expected. For example, in Federalist 62, Madison writes of the Senate as a correction to the “infirmity” of overly passionate assemblies because it was smaller and had longer terms than the House.

The basic assumptions that the Framers had about the way the House would work (and interact with the Senate) did not come to pass.

2) The Electoral College. It was assumed that no candidate (after Washington) was going to be able to generate a truly national following. As such, the assumption was that a number of regional candidates would emerge and that none would be able to garner a majority of electoral voters. the result, under the design of the institution, would have been the House regularly selecting the President and the Senate regularly selecting the Vice President.

This, however, was not what emerged. The need to resort to the House to choose the president has only happened twice (and once because the original design was so flawed that it led to a tie between the presidential candidate Jefferson and the vice presidential candidate, Aaron Burr). The Jefferson-Burr election showed the system working as designed, but not as intended and this resulted in the 12th Amendment.

Beyond that, a lot of people defend (often via complex arguments about large and small states) as to why the Framers created the electoral college.  The problem with such arguments is that they are wholly ex post facto descriptions of how the institutions is “supposed” to function.  The truth of the matter is, it was ill-conceived (with not a lot of time devoted to it at the convention) and that we, as a country, have managed to make it work despite its poor design.

3) Political Parties. The Framers did not understand political parties as we now do. Madison assumed, for example, that any given legislative body would be made up of shifting factions based on given issues and that no faction would be large and durable enough to be dominant for any significant period of time. However, once the Congress was up and running, Madison’s theory of faction did not work as he thought and, indeed, he found himself in the middle of formation of the first US party system.

Again, so much for “intent.”

The broader point is that as much as we like to make arguments over the Framers’ intentions, the bottom line is that those Framers often did not know how things were going to play out.  They designed a series of institutions in a committee constrained by practical politics that required compromise to achieve any kind of resolution.   As such, it should be no surprise that things may not have worked out as intended (see the list above).  Further, the notion that we would expect things to work exactly the same after ~2.25 centuries is problematic at best.

To put the point even more succinctly:  the degree to which the Framers fully knew how their designs would work is a dubious proposition (and there is plenty of evidence, such as the list above) that demonstrates this.  And if this is true, then claims founded on the notion that said intent is paramount are likewise dubious.

There was a point many years ago when I was far more amenable to the notion that the intent of the Framers was both knowable and dispositive.  The thing that changed my mind was actually studying the framing rather than accepting mythology.

FILED UNDER: *FEATURED, Politics 101, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Dave Schuler says:

    In this vein I think that another aspect of the design that didn’t work out as intended is the amendment process. My impression is that they assumed that amendments would be more common than has turned out. BTW there is still an amendment proposed in 1789 on reapportionment that is still waiting ratification.

  2. Simon says:

    Steven, the problem with this post is “who’s this ‘us,’ kimo sabe?” We can debate whether Ed Meese really meant to endorse intentionalism, and admittedly, and some people sloppily lapse into “intent” as a kind of shorthand. But in the main, only two kinds of people talk about the intent of the founders: Liberal critics who brandish it as a strawman for conservative jurisprudence, and lay conservatives who heard the term “original intent” and think they’re supposed to be for it. Virtually all legal conservatives, however, share the view associated with folks like Justice Scalia and Judge Easterbrook that there’s no such thing as collective intent, and that even if there’s such a thing it isn’t clear why it would be dispositive. It is the original public semantic meaning of the text to which “we” look. I don’t know a single serious legal conservative who would disagree with you in the slightest—or many serious legal liberals, for that matter.

    So who’s the we and against whom is the thrust? One recalls GK Chesterton’s introduction to Orthodoxy, in which he sketches a novel he intended to write of the man who leaves his home country in search of adventure, loses sight of the land over the ocean, and after washing up on a shore, supposes that he has encountered a new country, only to discover that he has landed in his homeland. This post seems of the same kind. Did you really set sail and discover the exotic coast of conservative orthodoxy?

  3. Ben Wolf says:

    There was a point many years ago when I was far more amenable to the notion that the intent of the Framers was both knowable and dispositive.  The thing that changed my mind was actually studying the framing rather than accepting mythology.

    The mythology plays an enormous role in American identity, something I’ve gradually become aware of over the last few years. What it amounts to is subtle but comprehensive religio-political indoctrination shaping how Americans think about themselves and the outside world, an indoctrination which begins in earliest childhood with concepts like American exceptionalism and being a country in god’s favor. Even those who reject the explicitly religious aspects continue to accept that we are somehow a people and a nation set apart. Recall Obama’s inauguration speech when he calles on Americans to “put their hands on the arc of history and bend it once more toward the hope of a better day.”

    Among both secularists and Dominionists there is the firm belief America is the only nation with the power, wisdom and selflessness necessary to guide the world toward the future. Which is, of course, poppycock.

  4. Jon says:

    Among both secularists and Dominionists there is the firm belief America is the only nation with the power, wisdom and selflessness necessary to guide the world toward the future. Which is, of course, poppycock

    Except for the fact, that the US has actually guided the world.

    The whole of western democracies have been substantially influenced by our Constitution. The US was the 1st major nation that made a point of protecting innovation and development, which in turn led to the highest standards of human living in all of history. The US saved all of western civilization not once, but twice through two world wars. The US has basically footed the bill for worldwide bank bailouts, in an attempt to keep modern civilization on its feet. Or did you not notice those Federal Reserve loans to the tune of $16 trillion that were recently made public? Whose money was that…. oh yeah, ours.

    That’s just off the top of my head, and took all of 30 seconds. I’m sure many OTB readers can provide many, many more with some additional thought.

    There are plenty of legitimate reasons to take exception to the idea that the US hasn’t been exceptional by nearly every metric over the course of the last two and a half centuries.

  5. @Simon:

    Well, first, I would note that I am not speaking here, really, about constitutional interpretation in the judicial sense, but rather in a more general one. Indeed, I more interested here in question of understanding the basic machinery of government than in the way in which judicial rulings at the highest level are made. I encounter enough commentary (not just bloggers, but highly visible columnists and pundits) as well as commenters, students, friends and family who have only a vague, generally mythical, view of these things that I think it is worth discussing. Ben, in the comment after yours, touches on part of the issue at hand.

    And, as I often point out; I blog what comes to mind and these issues are one my mind because I have been working on a book that touches on these topics and am currently teaching two classes that also deal with these themes. And then Doug Mataconis’ post on parliamentarism set my mind onto these topics in a bloggy context, in you will.

    Fundamentally I am noting that while we (as a country) constantly deploy the Founders in arguments, the fact of the matter is that we don’t know or understand 1787 anywhere near as much as we think we do. Indeed, beyond just that, we really don’t, as a country, have an especially good understanding of why institutional design matters and how it affects governance.

    So, no, not a voyage in quest of Orthodoxy.

  6. Ben Wolf says:

    The US was the 1st major nation that made a point of protecting innovation and development, which in turn led to the highest standards of human living in all of history.
    Patents and scientific progress predate the United States. The Western World was also growing wealthier and healthier before Uncle Sam showed up.

    The US saved all of western civilization not once, but twice through two world wars.
    If you choose to see things in such simplistic terms, civilization wasn’t in any danger in WWI, and the Soviet Union “saved” it in WWII by enduring and exhausting the Third Reich before we got there.

    The US has basically footed the bill for worldwide bank bailouts, in an attempt to keep modern civilization on its feet. Or did you not notice those Federal Reserve loans to the tune of $16 trillion that were recently made public? Whose money was that…. oh yeah, ours.
    Bailouts that were unnecessary and ultimately counterproductive. They institutionalized moral hazard and ensure we are on our way toward an even bigger financial crash in the near future. Nor do you take into consideration the primary role American-style financialism played in causing the global crash. It also doesn’t cost the United States or you anything to create more money. The government does it by pushing a few buttons, so don’t act like the bailouts put you up on the cross.

    Jon is a perfect example of living the American mythos: nothing worthwhile happens in the rest of the world; mankind is entirely dependent on the United States for anything good. In fact, anything the United States does is good, even jumping into WWI where we had no business being, or creating the conditions necessary for a global depression. For America, it’s always the intentions which count, never the outcomes.

  7. @Jon:

    The whole of western democracies have been substantially influenced by our Constitution.

    The US does deserve credit for being the beginning of the wave of constitutionalism that started in the 19th Century. However, the degree to which the US constitution itself was a substantial influence on the content of these constitutions in another matter. Yes, a lot of Latin American constitutions are based on the US model (hence presidentialism and bicameral legislatures). But, on balance, Europe went its own way and lot of the world based their basic constitutional design off of the British model (i.e., parliamentarism).

    A great book on the development of constitutionalism is Elkins, Ginsburg and Melton, The Endurance of National Constitutions published by Cambridge University Press. It is an academic book, but written in a way that is accessible to non-political scientists. I highly recommend it.

  8. Ron Beasley says:

    The constitution has become a religious document to some – not what the founders had in mind. The founders never thought that it would last as long as it has. Not surprisingly the very same people who see the Constitution as forever document see the Bible the same way. And they misinterpret both to fit their own prejudices and preconceived ideas.

  9. Alasdair says:

    “It is possible for something to work as designed while not necessarily working as intended. Indeed, we confuse intention with design. “

    Is such a distinction not, in and of itself, just as confused ? In the world of computer programming, it is almost tautologically de facto true that a program usually works as designed yet not necessarily as intended. This is the source of the expression “BAD coding” – Broken As Designed.

    Is it not reasonable to credit the Founding Fathers with designing things, to the best of their abilities, to perform as they intended ? And then, as often happens, Life/Reality got/gets in the way …

  10. @Alasdair: I am not so sure, given that governing institutions that function in the context of human interactions and are therefore a rather different beast than a computer program.

  11. mannning says:

    Original intent is a chimera, if only because you cannot produce first-hand evidence from each of the Founders as to their interpretations of every provision in the Constitution. Partial evidence surely, but the document was a consensus born of many related issues, and I see no way to resurrect such a group thought process accurately and completely from dead men.

    We are left with the words themselves to be interpreted, ultimately by the Supremes, those most human and falliable judges that create “penumbras” and tortured applications of the words, and with clear ideological biases showing through on many, many occasions. They hold the Father’s words hostage to their ultimate intent, lacking only the best wording of their opinions to lay their decisions before the public.

    The Founders would undoubtedly shudder at the collection of decisions that have been made, but that is totally beside the point: five justices control the direction of the Court on each decision, not the Founder’s intent, and their political philosophies and political objectives appear to weigh heavily on their opinions.

  12. Simon says:

    Manning said…

    Original intent is a chimera, if only because you cannot produce first-hand evidence from each of the Founders as to their interpretations of every provision in the Constitution.

    Which is why no serious person, least of all legal conservatives, actually advocates a jurisprudence of original intent. I don’t think anyone ever did at anything more than a rhetorical level; I’m certain that what Ed Meese meant to endorse was originalism, not intentionalism.