Originalism as a Legal Enterprise

Article excerpt

The reasonable person is an important and ubiquitous figure in the law. Despite the seeming handicap of being a hypothetical construct assembled by lawyers rather than a flesh-and-blood person, he (for most of Western legal history) or she (in more recent times) determines such varied legal and factual matters as the standard of care for negligence liability, (1) the materiality of misrepresentations in both contract (2) and tort, (3) the applicability of hearsay exceptions for admissions against interest, (4) the scope of liability for workplace harassment under Title VII, (5) the clarity of law necessary to defeat the qualified immunity of government officials, (6) and the custodial status of suspects for purposes of Miranda. (7) To carry out these myriad tasks, the reasonable person must understand community norms of care in some settings, apply customary trade practices in others, and grasp principles of legal interpretation in yet others. The reasonable person constructed by the law is capable of assuming many guises and performing many functions.

We focus here on one particularly significant, and significantly underappreciated, legal function of the reasonable person: The reasonable American person of 1788 (8) determines, for 1788 and today, the meaning of the federal Constitution. Thus, when interpreting the Constitution, (9) the touchstone is not the specific thoughts in the heads of any particular historical people--whether drafters, ratifiers, or commentators, however distinguished and significant within the drafting and ratification process they may have been--but rather the hypothetical understandings of a reasonable person who is artificially constructed by lawyers. The thoughts of historical figures may be relevant to the ultimate inquiry, but the ultimate inquiry is legal.

Ever since 1986, when then-Judge Antonin Scalia articulated the distinction between original intent, i.e., the subjective thoughts of historically concrete drafters and/or ratifiers, and original meaning, i.e., the meaning that a reasonable person would attribute to textual language, (10) modern originalists have moved steadily towards the latter. (11) But although the weight of originalist opinion today supports the view that the Constitution's meaning is to be found in the hypothetical mind of the reasonable person, (12) there is not yet a persuasive, systematic defense of this claim nor a clear indication of how one determines the characteristics and interpretative proclivities of this imaginary yet crucial figure. We hope to fill that gap here. In the process, we hope to vindicate the paramount role of lawyers in constitutional interpretation--a role that is seriously threatened by virtually all other originalist (and many nonoriginalist) interpretative methodologies that locate constitutional meaning in sources that are beyond the peculiar competence of lawyers to uncover.

In Part I of this article, we identify the considerations that point generally towards the use of hypothetical rather than historical mental states as the sources of constitutional meaning. The relevant considerations include the Constitution's own terms and structure, the nature of the Constitution's actual authorship and readership, and the social facts that made the Constitution authoritative in practice. Most tellingly, the Constitution itself identifies its author as "We the People of the United States," (13) which is clearly a legal fiction rather than an historical fact. The Constitution specifically requests that it be understood by reference to a hypothetical rather than historically real author or group of authors.

In Part II we introduce the laborious task of describing the characteristics of this hypothetical "We the People of the United States." How smart and reasonable is this legally-constructed person, and what assumptions does he or she bring to the interpretative enterprise? To complete this task would require us to set forth a complete theory of interpretation, and that is not our goal here. …