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How Do Originalists Interpret the Law?

Does an Originalist interpretation of the Constitution depend on whether or not the Founders themselves were originalists? Professor Ilan Wurman explains that the Founders did not devise a system for their private intentions to govern, but rather for the written words in the document of the Constitution to be the supreme law. Originalists try to discern the original public meaning of the written words by using a variety of sources for interpretation. In this respect, Originalists are simply doing what all lawyers do with any legal document - deciphering the context and meaning of the words as transcribed. https://youtube.com/watch?v=YMefnxIn6bU


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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