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.
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.