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Original Intention and Public Meaning in Constitutional Interpretation

24 Pages Posted: 28 Aug 2008 Last revised: 6 May 2009

Richard S. Kay

University of Connecticut School of Law

Date Written: September 19, 2008

Abstract

In recent years academic explanations of the originalist approach to constitutional interpretation have shifted the relevant inquiry from the subjective intent of the constitution-makers to the "original public meaning" of the Constitution's words. This article is a critical analysis of that development. In the actual course of adjudication by honest and competent judges either method should usually yield the same result. The reliance on public meaning, however, distracts the interpreter from the connection between the normative force of the Constitution and the founding events, a link that is essential to the legitimacy of constitutional judicial review. In the hands of less careful or less rigorous judges, moreover, abandoning intent as the central object of interpretation enlarges the range of plausible outcomes, threatening, as a practical matter, to subvert the clarity and stability of constitutional meaning that is central to the constitutionalist enterprise.

Keywords: Constitutional Law, Interpretation, Originalism, Public Meaning

JEL Classification: K10, K19

Suggested Citation

Kay, Richard S., Original Intention and Public Meaning in Constitutional Interpretation (September 19, 2008). Northwestern University Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1259867

Richard S Kay (Contact Author)

University of Connecticut School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States
860-570-5262 (Phone)

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