In my last post I discussed the basic idea of original methods originalism and the different versions of that interpretive approach. Here I want to note a very significant implication of Original Methods Originalism: the possible convergence of original intent and original public meaning. I then want to discuss another aspect of original methods – the view that the Constitution is written in the language of the law and therefore should be interpreted as a legal document. The Convergence Thesis The different versions of original methods discussed in my prior post also have important implications for how originalism is conducted. For many…
One approach to constitutional originalism is called original methods originalism, which John McGinnis and I have developed. While the theory has received significant attention, the overall relationship of the different parts of the theory have not always been understood. Therefore, I thought it would be useful in a couple of posts to discuss various aspects of the theory and how they relate. In these posts, I will explore 5 different aspects of original methods originalism: 1) the basic idea, 2) the different versions of original methods, 3) the convergence thesis, 4) the language of the law thesis, and 5) the minimization…
Constitutional historian Mary Bilder has a new book entitled Madison’s Hand: Revising the Constitutional Convention, which argues that Madison’s Notes, which are the principal source of the Philadelphia Convention’s activities in drafting the Constitution, were revised more extensively than most people realize. While I have not read Bilder’s book yet (but here is a brief summary), I very much like Bilder’s work, including this book and this excellent article. I am, however, aware of the criticisms and accusations about Madison’s work from previous scholars.
The extent to which the possible inaccuracy of Madison’s Notes affects originalism depends in part on the type of originalist one is. If one favors an original intent approach, then it is normally thought that the possible inaccuracy would be a big problem. By contrast, if one favors an original public meaning approach, then many people believe such inaccuracy would not matter much, because it is the meaning of words that matter, not what went on in the Philadelphia Convention.
Here I want to explain in what ways the Philadelphia Convention debates are relevant to an original public meaning approach. Such an approach inquires into the public meaning of the terms that the Constitution employs (rather than the subjective intent of the people who wrote the Constitution). An original methods originalist version of original public meaning – which is my view – looks to the original interpretive rules to determine that public meaning.
On this site Frank Buckley yesterday made a series of puzzling assertions about originalism. First, he says that “original meaning originalism” (which I believe most people call “public meaning originalism”) “dispenses with an examination” of what the Framers intended. At another point he states that public meaning originalism “collapses” into original intent originalism. These statements are in some tension with one another, but neither is accurate.
Few, if any, public meaning originalists believe that public meaning dispenses with examining what the Framers intended. What the Framers intended to do with words they wrote is often good evidence of what the public meaning was, particularly if they made their intent manifest publicly, as in the Federalist Papers. That is why almost all originalist scholarship of the public meaning variety regularly consults such materials.
On the other hand, the original intent does not collapse into public meaning. For public meaning originalists, the Framers’ intent does not constitute the public meaning conceptually and it may not even provide powerful evidence of that meaning if it were not known and contrary to other evidence of what their words would have meant. Moreover, there is ample other evidence from materials at the time that bears on the meaning of the words and phrases in the Constitution, such as newspapers and dictionaries of the time—material also regularly cited by public meaning originalists.