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"Originalists must first decide which historical evidence counts, and as every historian knows, that requires a great deal of judgment. Early versions of originalism referred to the “original intent” of the framers, but little evidence of their intent exists. The records of the Constitutional Convention are sparse; we are left largely to rely on James Madison’s notes, but their objectivity has been questioned. As Justice Robert Jackson quipped: "Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh."
Furthermore, even if we could know precisely what went on behind the closed doors of the Constitutional Convention, the framers did not have authority to bind the nation themselves. The Constitution took effect only upon the votes of the state ratifying conventions, so if any intentions are relevant, it would be theirs. But there is even less evidence available regarding the ratifying conventions. And even if we had verbatim transcripts of each state’s ratifying convention, how does one determine the intent of a collective body—or in this case, of multiple collective bodies? Original intent is a theoretical construct, not a fact in the world.
After years of criticism along these lines, scholars advocating originalism conceded the difficulty with discerning “original intent.” So the revised version of originalism directs judges instead to the “original meaning” of the Constitution, that is, what its words meant to the public when they were adopted. Original meaning is guided by dictionaries of the time, as well as contemporaneous usage and practice. But dictionaries often provide multiple definitions for a given term, legal meanings can differ from ordinary meanings, and contemporaneous practices often varied greatly, even assuming that the Constitution was meant to codify some of them. Thus, ...“for most constitutional provisions, there is no ‘original meaning’ to be discovered. Instead, there is a range of possibilities that allows for exactly the judicial discretion that originalism seeks to eliminate.”
Indeed, on many important issues, including the very question of how to interpret it, the Constitution is silent. ...even the Supreme Court’s power to declare acts of Congress or the executive branch unconstitutional is nowhere set forth in it. How can we be guided by the “original meaning” on a subject the Constitution does not even speak to? Originalists often argue that if the Constitution does not expressly provide an individual right, the right does not exist—much as the majority argued in Dobbs. The same would presumably be true of governmental powers, yet originalists do not contend that the Constitution’s silence means the Supreme Court lacks the power to declare acts of the other branches unconstitutional. Many presidential powers, including the power to remove Cabinet officers, to assert executive privilege over working papers, or to rescind treaties, are similarly not addressed by the Constitution’s text and therefore cannot be determined by “original meaning.”
If one could overcome all of these problems in discerning “original meaning,” one would still have to choose at what level of generality to interpret a constitutional provision. That choice, too, opens up substantial room for discretion. The Constitution gives Congress the power to create an army and a navy. But can Congress create an air force? Only if one reads the references to “army” and “navy” more broadly, as authorizing standing military forces."
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I suspect conservatives like it because it comes from an era when only the interests of white, male landowners were considered valid.
Furthermore, even if we could know precisely what went on behind the closed doors of the Constitutional Convention, the framers did not have authority to bind the nation themselves. The Constitution took effect only upon the votes of the state ratifying conventions, so if any intentions are relevant, it would be theirs. But there is even less evidence available regarding the ratifying conventions. And even if we had verbatim transcripts of each state’s ratifying convention, how does one determine the intent of a collective body—or in this case, of multiple collective bodies? Original intent is a theoretical construct, not a fact in the world.
After years of criticism along these lines, scholars advocating originalism conceded the difficulty with discerning “original intent.” So the revised version of originalism directs judges instead to the “original meaning” of the Constitution, that is, what its words meant to the public when they were adopted. Original meaning is guided by dictionaries of the time, as well as contemporaneous usage and practice. But dictionaries often provide multiple definitions for a given term, legal meanings can differ from ordinary meanings, and contemporaneous practices often varied greatly, even assuming that the Constitution was meant to codify some of them. Thus, ...“for most constitutional provisions, there is no ‘original meaning’ to be discovered. Instead, there is a range of possibilities that allows for exactly the judicial discretion that originalism seeks to eliminate.”
Indeed, on many important issues, including the very question of how to interpret it, the Constitution is silent. ...even the Supreme Court’s power to declare acts of Congress or the executive branch unconstitutional is nowhere set forth in it. How can we be guided by the “original meaning” on a subject the Constitution does not even speak to? Originalists often argue that if the Constitution does not expressly provide an individual right, the right does not exist—much as the majority argued in Dobbs. The same would presumably be true of governmental powers, yet originalists do not contend that the Constitution’s silence means the Supreme Court lacks the power to declare acts of the other branches unconstitutional. Many presidential powers, including the power to remove Cabinet officers, to assert executive privilege over working papers, or to rescind treaties, are similarly not addressed by the Constitution’s text and therefore cannot be determined by “original meaning.”
If one could overcome all of these problems in discerning “original meaning,” one would still have to choose at what level of generality to interpret a constitutional provision. That choice, too, opens up substantial room for discretion. The Constitution gives Congress the power to create an army and a navy. But can Congress create an air force? Only if one reads the references to “army” and “navy” more broadly, as authorizing standing military forces."
Link
I suspect conservatives like it because it comes from an era when only the interests of white, male landowners were considered valid.