Academic journal article Harvard Law Review

Original Meaning and Its Limits

Academic journal article Harvard Law Review

Original Meaning and Its Limits

Article excerpt

Justice Scalia has prominently defended a version of originalism that demands adherence to the Constitution's original meaning and, moreover, construes the original meaning of value-laden language, such as "unreasonable" and "cruel," by reference to the applications it was commonly thought to have at the time of ratification. (1) This form of originalism is distinct from versions that place their weight on the original intent or expectations of a clause's authors or ratifiers rather than on the common meaning of the enacted text, (2) and seems to promise an escape from the objection encapsulated in Justice Scalia's remark that "[m]en may intend what they will; but it is only the laws that they enact which bind us." (3)

Although Justice Scalia advances a number of arguments in favor of his preferred method of interpretation, one argument is of primary importance. (4) This "basic argument" maintains that because the Constitution is a text, it should be interpreted according to its original meaning. It therefore should be interpreted to apply as it would generally have been understood to when it was ratified.

As critics of originalism have pointed out, there is a gap in the basic argument. It takes its first step on seemingly solid ground, (5) with the premise that Justice Brewer articulated as follows: "The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted it means now." (6) But the inference from this initial premise to Justice Scalia's conclusion--that the Constitution should be interpreted to have the same applications it would have been given when ratified--is valid only if an additional premise is taken for granted: namely, that the original meaning of the Constitution's text is coextensive with these original applications. (7) This additional premise is dubious.

Yet orginalism's critics may themselves fail to subject the notion of original meaning to sufficiently careful scrutiny. Typically, after pointing out that originalists have conflated the meanings of words with their applications, critics conclude either that judges interpreting the Constitution's value-laden clauses should apply them according to the best contemporary understanding of, for example, which punishments are cruel, or that the use of value-laden terminology in the Constitution licenses judges to apply their own moral views to the cases that come before them. Without undertaking a careful inquiry into the nature of original meaning, however, it is unclear whether the methods of interpretation advocated by originalism's critics are true to the Constitution's meaning.

This Note attempts to undertake the needed inquiry into the original meaning of the Constitution's value-laden language. Ultimately, it proposes that if the framers and ratifiers shared an understanding that they were using value-laden language to prescribe or proscribe certain practices, then, in an important sense, the Constitution's original meaning requires or prohibits these practices. This kind of original meaning cannot, however, define the outer reaches of the Constitution's value-laden clauses; it is necessarily more limited. If prescriptions or proscriptions of specific practices are part of the Constitution's original meaning, then they might be treated as binding precedents comparable to judicial precedents, serving as foundations for subsequent development of constitutional doctrine. This Note will suggest intuitively plausible reasons for treating this kind of original meaning as binding. Its primary aim, however, is not to mount a theoretically exhaustive normative defense of a favored method of constitutional interpretation, but rather to contribute clearer thinking about original meaning to the ongoing normative debate.

Part I lays out the "basic argument," focusing on the exemplar in Justice Scalia's defense of originalism. It then examines objections to this argument. …

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