Note: This article originally appeared at The American Thinker.
When lawyers and judges interpret legal documents, they usually try to ascertain the understanding of the parties to the document—or, more precisely, something they call the “intent” behind the document. The Founding Era phrase was “intent of the makers.” The “intent of the makers” is what originalist scholars try to uncover when they interpret the Constitution.
The “intent of the makers” is a technical term referring, in the case of the Constitution, to how the ratifiers (not the framers) understood it—or, if as to a particular clause there is not sufficient evidence of a unified understanding, how informed people would have understood it during the ratification era. Because this is the guide for how Founding Era courts would have interpreted the Constitution, I sometimes call this concept the “original legal force.”
Commentators presenting their views on the Constitution’s original legal force should avoid certain common mistakes. Two obvious ones are (1) not understanding the rules of original legal force and (2) cherry-picking evidence to support pre-determined conclusions. Other errors include:
* Reading the document as a 21st century American rather than an 18th century American;
* Using evidence that is not from the relevant time period—sometimes from a period too long before the Constitution’s adoption, but more commonly from a time after the ratification was over; and
* Gathering insufficient evidence.
Several years ago, I prepared a nine-page essay to help researchers avoid the last of those mistakes. This essay was called A Bibliography for Researching Original Understanding. It is available on this website here. It provides a list of materials originalists can use.
One last point: When citing 17th and 18th English law cases, it has become the custom recently to cite only the location of the case in English Reports (Full Reprint), a modern case collection. This custom has been encouraged by the widely-used citation guide known as the Harvard Bluebook.
Unfortunately, limiting citation to English Reports is not good practice. English Reports obtained its summaries of cases from the books compiled by individuals known as reporters. The quality of their reports vary greatly. A Founding Era lawyer consulting a case report by William Salkeld, for example, would give much more credit to it than to a case report by Joseph Keble. He also would give more credit to Salkeld’s first two volumes than to his third. Citing only to English Reports tells the reader nothing about the reliability of the material being cited. Also, it gives too much weight to case reports the Founders might have disregarded and too little to those they deemed authoritative.
The definitive guide to the relative merits of the English case reporters was written by an American, John William Wallace, whose book is referenced in my bibliographical essay.