Unifying Original Intent and Original Public Meaning

Abstract

Original intent and original public meaning are generally thought to be opposing camps within originalism. Both theories assert that that the meaning of a constitutional provision was fixed at the time it was enacted. But they disagree fundamentally on the nature of interpretation. Original intent asserts that the meaning sought is that intended by the Constitution’s enactors. Original public meaning asserts that the meaning sought is that revealed by the text as reasonably understood by a well-informed reader at the time of the provision’s enactment.

In this Essay, we unite these two conflicting principles of originalism under the original methods approach to constitutional interpretation, thereby providing a single coherent foundation for originalism. Under original methods, the Constitution is interpreted using the conventional legal interpretive rules deemed applicable to a document of its type at the time it was enacted. As properly understood, both the original intent and original public meaning approaches mandate that the Constitution be interpreted using the same conventional interpretive rules. Under original public meaning, a reasonable and knowledgeable person at the time would interpret the constitutional text by using the rules that were then thought to apply to it. Under original intent, the enactors would have intended the Constitution to be interpreted based on the conventional interpretive rules applied to it at that time.

We further argue that these interpretive rules should be identified using the methods that people at the time would have employed for determining the interpretive rules. Just as constitutional provisions should be interpreted using the interpretive rules employed at the time of the relevant provision’s enactment, so too should the interpretive rules be identified based on the methods employed to identify those interpretive rules. We illustrate our approach by exploring the controversy of the Bank of the United States, showing, for instance, that there was a consensus against use of the substantive intent of the Philadelphia Convention as an interpretive rule.

Keywords: originalism, Bank of the United States, language of law, interpretive rules, original public meaning, original intent

JEL Classification: K10, K19