67 Pages Posted: 31 Jan 2008
This Article addresses whether the American Founders expected evidence of their own subjective views to guide future interpretation of the U.S. Constitution. The Article considers a range of evidence largely overlooked or misunderstood in earlier studies, such as contemporaneous rules of legal interpretation, judicial use of legislative history, earlier American public debate, and pronouncements by state ratifying conventions. Based on this evidence, the Article concludes that the Founders were original-understanding originalists. This means that they anticipated that constitutional interpretation would be guided by the subjective understanding of the ratifiers when such understanding was coherent and recoverable and, otherwise, by the Constitution's original public meaning.
Keywords: constitution, interpretation, constitutional law, constitutional history, original meaning, original intent, original understanding, founders
JEL Classification: k10,k19,k30,k39,k40
Suggested Citation: Suggested Citation
Natelson, Robert G., The Founders' Hermeneutic: The Real Original Understanding of Original Intent. Ohio State Law Journal, Vol. 68, No. 5, 2007. Available at SSRN: https://ssrn.com/abstract=1088351