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Originalist Research Guide Updated

Scholarly investigation into our Constitution’s actual meaning—or, more precisely, into the Constitution’s legal force immediately after adoption—commonly is called “originalist” research.

Until fairly recently, the quality of originalist research was fairly low. Most of it was conducted by law professors with little background in historical method or in founding-era language or social conditions. Moreover, most writers were interested primarily in making a case for some preconceived political notion. They tended to cherry-pick a handful of “standard sources” (such as the Federalist Papers) and overlook materials of equal or greater relevance. They also frequently relied on material that arose years, even decades, after the constitutional debates, and therefore irrelevant to the ratifiers’ understanding.

To improve the quality of originalist scholarship, several years ago I published an essay outlining originalist sources and making some comments on investigative methods. The situation has improved somewhat since then, but I still update the essay from time to time. The 2016 version is here.

One fundamental, and very common, error has not been corrected, however. Most originalist scholars are still guided by a concept they call the “original meaning” or “original public meaning” of the Constitution rather by the original understanding of the ratifiers. The “original meaning” standard arose out of the inaccurate belief, first promoted in the 1980s, that Founding-Era legal interpreters disregarded subjective factors and relied only on a document’s objective meaning to a theoretical reasonable person.

In fact, the makers’ subjective understanding (in the case of the Constitution, the understanding of the ratifiers) was determinative whenever it could be reconstructed. The “no subjective factors” view has been debunked for several years now—by my work, among others—but most originalists have not corrected their methodology.

In practice, though, the difference in result between original-meaning and original-understanding methodology is usually (although not always) insignificant.

Rob Natelson