When the Constitution was written, there were specific legal rules about how one goes about interpreting constitutional phrases. Over the course of time, however, judges and commentators gradually forgot them.
In the 1980s, some argued that the courts should “return” to applying the original intent behind the Constitution—that is,what the framers (drafters) of the document intended when they wrote it.
In his 1990 best seller, The Tempting of America, Judge Robert Bork recognized that this view was not entirely correct:
Madison himself said that what mattered was the intention of the ratifying conventions. His notes of the discussions at Philadelphia are merely evidence of what informed public men at the time thought the words of the Constitution meant. Since many of them were also delegates to the various state ratifying conventions, their understanding informed the delegates in those conventions . . . what counts is what the public understood.
But this excerpt contains confusion of its own. What exactly is Judge Bork saying should prevail: “The intention of the ratifying conventions” or “What informed public men at the time thought” or “What the public understood?”
On the same page, Bork writes:
What is the meaning of a rule the judges should not change? It is the meaning understood at the time of the law’s enactment. Though I have written of the understanding of the ratifiers of the Constitution, since they enacted it and made it law, that is actually a shorthand formula, because what the ratifiers understood themselves to be enacting must be taken to be what the public of that time would have understood the words to mean. It is important to be clear about this. The search is not for subjective intention.
Judge Bork was right that secret (unannounced) subjective intention is not binding, but what if the ratifiers’ view of a clause was openly stated? He never fully explained why open statements should not control or why “what the ratifiers understood . . . must be taken to be what the public of the time would have understood.”
Judge Bork had good reason to be confused. During the decade before he wrote his book, authors of articles published in very prestigious legal journals had claimed that when a Founding-Era judge or lawyer construed a document, he wholly disregarded what the parties really intended—all that was important was the structure of the document and its objective meaning. Law professors and others cited these articles repeatedly and uncritically. I think Judge Bork was trying to reconcile their claims with what Madison had said.
Unfortunately, very few people bothered to check the footnotes in those articles. I was one of the few who did. I found that the authors had relied on a relatively few selected sources and sometimes had misrepresented what those sources actually said. I also found that some of their history was inaccurate.
But it was not until 2005, when I spent a semester in England, that I had access to libraries adequate for a full investigation (thanks to Oxford University and the Middle Temple). I spent much of my time leafing through a massive amount of material, learning how Founding-Era lawyers and judges actually interpreted legal documents. The answer was clear: Madison (as usual) was essentially correct.
The Founding Era touchstone for interpreting the Constitution was the subjective understanding of the ratifiers.Only if that understanding was unclear or contradictory did Founding-Era judges apply “what the public of that time would have understood the words to mean.” Judge Bork was right to the extent that original intent was useful insofar as it helped prove what the ratifiers understood or what the objective meaning was.
As often happens when one questions the prevailing wisdom, I had trouble getting my conclusions published in a leading journal. Law review editors just couldn’t believe that a professor from Montana could be right while prestigious authors writing in places like Harvard Law Review were wrong.
So after several months of frustration I withdrew the article, re-wrote it slightly, and, swallowing my distaste, gave it a far more pretentious title: The Founders’ Hermeneutic. (Hermeneutics is the study of meaning.) Eventually, a well-regarded law journal published it. Some writers have tried to ignore it, some have admitted that is correct, and none has even attempted to rebut it.
In summary: When interpreting phrases in the Constitution, you look to how the ratifiers understood them. If the evidence on that point is lacking or contradictory, you apply the original public meaning (relying, for instance, on other legal documents and dictionaries). You can use the records of the drafting convention (”original intent”) as evidence of original understanding and original meaning.
Applying original intent, original understanding, or original meaning usually yields the same results. But sometimes not. For example, in 1787 most people could have interpreted the bans on state and federal ex post facto laws to prohibit retroactive civil laws as well as retroactive criminal laws. During the ratification process, however, the ratifiers made a public bargain to the effect that the bans would be applied only to criminal laws. This understanding appears in the ratification debates, in New York’s ratification resolutions, and in an uncontradicted comment by the leading Federalist John Dickinson. Under Founding-Era legal “hermeneutics,” that understanding is what governs.