Oliver Wendell Holmes goes quite out of his way to express his belief in the importance of externalities in the law. When the words of a statute, of a will, or of a general written instrument are not expressive in the clearest of terms, Holmes argues that it becomes necessary to ascertain the intention of the writer in order to adequately see the law adhered to. It seems fairly obvious that where specificity is lacking, one must, ironically, venture deeper into the mist to gain any clarity.
This is a concept that Americans are familiar with on the macro scale – the intentions of a writer. I think we can guess at what I’m talking about; we constantly hear, as a matter of guarantee in political discourse, that we must obey the intent of the framers! “The Framers never intended for the… to be…” or “The Founding Fathers created a …. government to… in order to ….” We’re all basically familiar with the boilerplate language. The question I pose is this: when do we reach a point wherein seeking to ascertain the intentions of a writer of an instrument will actually inhibit the effective execution of law or government?
In matters such as wills and contracts, intent is everything. As a general principle of contract law, parties must intend to be bound by a contract for the contract to be considered viable. Therefore, in instances like this, it makes sense that intent should be paramount.
However, in looking at a document like the U.S. Constitution, I feel that there is an argument to be made against this. Well – not totally against this. As a matter of course, it is important to understand and consider the intentions originally contemplated by the framers of the Constitution, or the Framers of the Bill of Rights, or the Framers of the Fourteenth Amendment. An understanding of the framework they have provided lends to the reader an insight into the inner-machinations originally conceived of by those scholars. However, an understanding of those intents can also lead one to the conclusion that perhaps too much attention is paid to this. When one reads the relevant literature, one finds that a fluid, evolving, government seems to have been conceived of – one that must adapt to the times in which it exists in order to survive. Among those adaptions, one could argue, is the moving away from the intentions of a body of men, long dead, and toward the intentions of those currently living under the government they created.
Then again, how else would I know I don’t have the right to keep a bear’s arms?