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, if a court applies one version of originalism rather than another. In the wake of Professor Powell’s conclusions, many originalists shifted from applying the Founders’ subjective “intent” or “understanding” to an approach that subordinates their subjective views to the Constitution’s “original public meaning.”

The Ex Post Facto Clauses offer an illustration of how this shift can affect results: A judge applying an originalist “objective public meaning” standard to the Ex Post Clauses might well conclude that they banned all retroactive statutes, civil as well as criminal. On the other hand, a judge applying an originalist subjective understanding standard would be guided by the Founders’ eventual pact that the Ex Post Facto Clauses would prohibit retroactive criminal statutes only.

A more colorful, if more academic, example of how differing originalist standards can alter results lies in the question of whether the original, unamended Constitution permitted a woman to be elected President. Public-meaning analysis suggests (although it only suggests) that the answer was “no.” But a court applying the Founders’ subjective understanding might well conclude the contrary. The choice of interpretive method has an additional practical implication as well: Founding-era subjective intent jurisprudence carried with it a doctrine the common law courts called equitable construction, which increased judicial discretion in some cases. The doctrine is explained in Part IV.

My own interest in the topic had nothing to do with modern outcomes. It arose because I thought that someone needed to “get the history right.” The placement of previous commentary in some of the nation’s most prestigious law reviews should not induce us to overlook its serious defects of historical method, including neglect of crucial historical evidence, erroneous and selective use of sources, and anachronism.

The Original Constitution

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This Article seeks to “get the history right.” After this Introduction (Part I), it falls into five more Parts: Part II shows that the founding generation assumed that the Constitution (with some allowance for the nature of theinstrument, of course) would be interpreted through methods of documentary construction long established in the Anglo-American legal tradition. Part III confirms what other commentators have found: that an inquiry into the “intent of the makers” was central to documentary construction.

Part IV shows that, where recoverable, the “intent” sought was the makers’ subjective intent, not merely a meaning artificially deduced from the words of the document. Part IV further explains why some very influential writers have been misled on this point. Part V discusses the founding generation’s own application of these traditional rules to the Constitution by, for example, formal adoption of resolutions at state ratifying conventions. Part VI is a brief conclusion.

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Rob Natelson