How Do Originalists Interpret the Law? [No. 86]
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How Do Originalists Interpret the Law? [No. 86]


Opponents of Originalism often cite this 1985
article by H. Jefferson Powell showing that the Founders did not intend for their intentions
to govern. In other words, the Founders weren’t themselves
originalists and so originalism is self-defeating. But all H. Jefferson Powell shows in this
article is that the Founders didn’t intend for, well, their intentions to govern. But originalism is about discerning the original
public meaning of the text, not about giving legal effect to the secret intentions of the
Founding Fathers. And the way we figure out what the Constitution
says is the same way we figure out what any instruction intended for a public audience
says. So this could be a recipe for fried chicken
that you find in your grandmother’s attic that’s dated from 1789. It could be any instruction intended for a
public audience. We interpret those instructions with their
public meanings, not with secret meanings, and with the meanings they had at the time
that they were written or spoken. After all, if the recipe says to add ingredient
X but you don’t like ingredient X today, so you take it out and put in ingredient Y. That’s not interpreting the Constitution or
interpreting the recipe, that would be changing the recipe. The same kind of argument can be made about
interpreting laws and the Constitution, more generally. But how do we determine what texts mean in
ordinary documents or in ordinary communication? It certainly helps to have context and that
context includes the intentions of the people writing the law, it includes the general purposes
for which they were writing the law, it includes the general backgrounds and assumptions that
they all had. All of these are relevant to determining what
the text actually means, what legal effect the text was actually intended to have. That’s how we interpret contracts, we try
to figure out the intent of the parties by interpreting the meaning of the words that
they used. That’s how we interpret laws, we try to figure
out what Congress tried to do. The Constitution, which itself is a law, a
law we the people enacted to bind our legal officials, should be interpreted in the same
way. When interpreting the Constitution, we first
must ask what does it actually say? What does it do? What legal effect does it have? And it’s a separate question whether that
Constitution is a good constitution. The Founding Fathers were absolutely originalists. They expected the Constitution to be interpreted
just as any other law would be interpreted. And at the time, the laws were interpreted
by discerning the public meaning of the words of the law.

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