102 Pages Posted: 22 Aug 2004
Originalism as a methodology of constitutional interpretation has, ironically, itself gone through a series of changes over the past quarter century. From original intent to original understanding to (most recently) original meaning, originalism has been an evolving theory. With these subtle changes in methodology have come significant changes in views of the status and weight to be accorded various extrinsic sources for aiding in understanding the Constitution's meaning.
This Article addresses the proper interpretive force of the Constitution's secret drafting history - the Records of the Philadelphia Convention of 1787 - within a coherent theory of originalism. We argue that the Philadelphia debates, unavailable to those who actually ratified the Constitution and brought the dead words on parchment to constitutional life, are nonetheless highly relevant sources for understanding the Constitution - if (and only if) the relevant inquiry is the objective meaning that the document's words and phrases would have had, in context, to ordinary, reasonably well-informed speakers and readers of the English language at the time of the Constitution's adoption, rather than the subjective intentions or expectations of any particular body or group (like the Framers or the Ratifiers). A study of the interpretive force of the Philadelphia Records sheds much light on competing theories of originalism in constitutional interpretation - and vice versa.
Suggested Citation: Suggested Citation
Kesavan, Vasan and Stokes Paulsen, Michael, The Interpretive Force of the Constitution's Secret Drafting History. Georgetown Law Journal, Vol. 91, 2003. Available at SSRN: https://ssrn.com/abstract=549984