Now that Solicitor General Elena Kagan has been nominated for the U.S. Supreme Court by President Obama, it is clear that the Senate Judiciary Committee hearings will be the major political event of the summer.
These hearings have become highly partisan affairs over the past 30 years, and given the recent closed-ranks posture of the Republican opposition, we can expect all the sharp-edged political weapons to be deployed against the nominee. The chief weapon will be the claim that Supreme Court justices should interpret the Constitution as it was written, not impose their political or personal convictions on the semi-sacred text. Woe to the nominee who has left a paper trail that deviates from the original intentions of the Founders, or what a hostile Senate interrogator defines those intentions to be.
Yet the constitutional doctrine of original intent has always struck most historians of the founding era as rather bizarre. For they, more than most, know that the original framers of the Constitution harbored deep disagreements over the document's core provisions, and that the debates in the state ratifying conventions further exposed the divisions of opinion on such seminal issues as federal vs. state jurisdiction, the powers of the executive branch, even whether there was -- or should be -- an ultimate arbiter of the purposefully ambiguous language of the document.