LOOK AT THE LANGUAGE
Special attention should be paid to the language of the First Amendment. It does not say that freedoms of speech and press shall not be abridged. The words say that Congress, not the states, “shall make no law.” True, the Federalists had argued that the individual states had their own guarantees of freedoms of speech, press, and religion, but the Antifederalists’ anti-ratification arguments focused on what the new national government might do.
To understand the “original intent” of the Constitution would require posthumous reading of the minds of the delegates who wrote the Constitution in 1787, plus telepathic communications with the different sets of men who voted in the ratifying conventions in each state. As Anthony Lewis has noted, the intent behind the Bill of Rights is even harder to discern: there is little record of what members of the nation’s First Congress meant in offering the Bill of Rights amendments in 1789.
It celebrates the obvious to say that the United States is able to enjoy more than 220 years under the Constitution because that document sets out general principles, principles designed to accommodate change. For a horrifying thought, suppose that somehow the calendar could be turned back to get closer to t he kinds of understandings—and compromises—included in the draft document of 1787. Try to envision the state of things in the fourteen United States at the hour of endorsement of the Constitution by 39 of the delegates meeting in Philadelphia on September 17, 1787.
Did that document, at that time and place, represent the Framers’ “original intent?” Should that intent must be followed? If the draft 1787 Constitution—before amendments--did represent” original intent”—and if the nation had been faithful to it—what would there be? There would be slavery, no women’s vote, a limited franchise for white males (and only white males), and no secret ballot. And, unless forced by the Antifederalist political opposition, there would be no Bill of Rights.