The People's Constitution vs. The Lawyer's Constitution: Popular Constitutionalism and the Original Debate over Originalism

Abstract

The debate over constitutional Originalism continues to spark scholarly controversy. The most recent development in this contested history is the emergence of so-called "New Originalism," an approach that eschews the search for the subjective intent of either the Framers or Ratifiers and instead focuses on the public meaning of the text at the time of the Founding. A somewhat under-theorized version of this theory even made a cameo appearance in Justice Scalia's majority opinion in District of Columbia v. Heller. While champions of New Originalism claim to have solved the problems of traditional Originalism and identified a means of elucidating an objective meaning of the Constitution, this theory has not solved the basic problem with Originalism: the absence of a rigorous historical methodology. Any effort to explore the original meaning of the Constitution must deal with a range of methodological problems inherent in any work of intellectual history. Moreover, New Originalists have assumed the existence of an interpretive consensus when there was none at the Founding. Americans were just as deeply divided over questions of constitutional methodology then as they are now. Any choice we make about how to interpret the Constitution, including the emphasis on public meaning favored by New Originalists, invariably commits us to a position in the Founding Era's debates. There simply is no neutral Archimedean point from which any Originalist can begin discerning the true original meaning of the Constitution. The suggestion that constitutional meaning is derived by elaborating the public meaning of the Constitution's text and not by recourse to the intent of its Framers or Ratifiers is not a neutral philosophical or historical claim that stands above the political fray; rather, it is simply one of many possible interpretive stances in political play at the time of the Founding.