• Video

Does Originalism Mean There's One Right Answer?

Professor Ilan Wurman explains how indeterminacy is always a factor in Constitutional interpretation. Even the Founders realized that some text would have to be debated and interpreted by Congress, after thoughtful consideration of plausible meanings. Today, Originalists need to approach the Constitution in the same way - with the understanding that there may be more than one original public meaning of a word or phrase. Different Originalists may arrive at different answers. Sometimes there is a clear “right” answer but there can often be a range of plausible interpretations. https://youtube.com/watch?v=k2vI3QZSIQQ


Often interpreting the original public meaning of the words leads us to conclude that there is indeterminacy. Words often leave room for vagueness, they leave ambiguities. So texts can be indeterminate. Supporting an originalist interpretation of the Constitution does not mean that we can't recognize these indeterminacies, the question is how to resolve those indeterminacies. The Founders themselves recognized that the Constitution would be indeterminate. In Federalist 37, Madison has some beautiful passages about the indeterminacy of language, but they also thought about how to resolve these indeterminacies. The Founders most likely adhered to a concept that we might call liquidation. They would liquidate the meaning, determine the meaning of ambiguous or indeterminate constitutional provisions or a series of discussions and adjudications. In other words, if there was an uncertainty as to the meaning of the Constitution, Congress would debate on what that best meaning should be within the realm of that indeterminacy. It still has to be textually or linguistically plausible. The President could also weigh in on this dispute and the courts could also weigh in on this dispute. And over time over a series of these discussions and adjudications and deliberation, the meaning of the Constitution and its ambiguous parts or its indeterminate parts would become fixed and determinate. So one example of liquidation, this practice of liquidation, is the debate over the constitutionality of the Bank of the United States. The very first Congresses debated whether Congress had the power to incorporate a national bank. It's not specifically enumerated but it might be necessary and proper to several other powers. Thus, this was indeterminate; it was unclear whether Congress did or did not have this power. Well, Congress and the executive debated and deliberated and concluded when all the constitutional arguments were on the table that Congress does have this power and Congress enacted the National Bank. And James Madison, when he was President two decades later, refused to veto on constitutional grounds the Bank of the United States even though he as a representative had opposed it on constitutional ground. Why? Because he claimed that the question over the constitutionality of the bank had been settled through the series of discussions and adjudications that had occurred in prior Congresses and with prior Presidents. It's true that often some originalists will claim that originalism always leads to one determinant right answer. But once we grant the existence of indeterminacy, it very well could be that originalism will lead to a range of plausible answers.

Related Content