Original-Intent Originalism: A Reformulation and Defense
43 Pages Posted: 27 Apr 2021
Date Written: April 1, 2021
Originalists emphasize constitutional text as a means of interpreting and applying provisions of the Constitution to concrete issues. In the 1970s and 1980s, the first wave of originalists considered the intentions of the Framers as controlling for interpretation of constitutional text. Over time—and in part due to the critique of intentionalism that suggests we lack a reliable means of assessing the subjective intentions of all of those who adopted a particular constitutional provision—the focus of originalists shifted to the original public meaning of constitutional text. For reasons detailed below, I maintain that a focus on text, while critically important to constitutional interpretation, is inadequate by itself for faithfully interpreting the Constitution, particularly where its open-textured provisions, which are most often the subject of adjudication, are concerned. By intent, originalists mean what the Framers and Ratifiers sought to do by means of the Constitution’s provisions. It is the actions and results the Framers and Ratifiers sought to achieve that constitute their intent. It is insufficient to say, as Randy Barnett does, that the language to which the Ratifiers agreed constitutes the meaning of the Constitution. It is true that Madison said, which Barnett quotes him as saying, that the Ratifiers’ understanding of the Constitution should control its interpretation. The Ratifiers, however, were not simply voting on words, but on changes in action to be made and implemented in structure and policy, so that the actions of the national government would be different in some respects from what it had done before. The Framers and Ratifiers of the Constitution intended for certain purposes to be accomplished, and it is in those purposes that meaning must be sought.
Keywords: originalism, constitutional theory, constitutional interpretation, constitutional law
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