The Real Original Understanding of Original Intent

images-28This Article re-examines the controversial question of whether the American Founders believed their own subjective understandings should guide future interpretation of the United States Constitution, or whether they thought constitutional construction should be guided only by objective public meaning or some other hermeneutic standard. This is a historical question, and in this Article, I treat it as such. I do not argue that one standard of interpretation is better or worse than another. I explore the Founders’ views on the matter and report the results.

Previous commentary on the issue has been fairly extensive. Interest seems to have been encouraged by the issue’s implications for modern constitutional interpretation. For example, Professor H. Jefferson Powell, whose influential article concluded that the Founders would have thought subjective intent irrelevant, went beyond the historical material to argue that his conclusion impaired the legitimacy of traditional originalism.

Not surprisingly, defenders of traditional originalism, such as Harvard’s Raoul Berger, have claimed that history supported their own position. Perhaps that is why the scholarly exchange over what should have been purely a historical question has been marked by the bitterness of political strife.

It is true, of course, that one’s chosen interpretive method can affect the outcome of constitutional disputes. Results can change according to whether a court applies originalism or some other method. Results also can change, although in a lesser number of cases