A recent book from Donald Drakeman–The Hollow Core of Constitutional Theory: Why We Need the Framers–addresses a question that has troubled me for some time. As textualists torture text, and advocates of original public meaning go searching for what cannot be objectively ascertained, what was ever wrong with original intent?
The originalist case against original intent, in brief, was that the personal intentions of legislators could not control the meaning of law. Allowing individual intentions to determine meaning for everyone was thought to be anti-republican. The solution was original public meaning, the search not for what the lawmaker meant but rather for how the public understood it. Contra Robert Bork, for example, Justice Scalia felt the understandings of the state ratifying conventions were more important than the debates of the Framers in Philadelphia. That case had some support from James Madison, who expressed similar sentiments. But the understandings of the ratifying conventions predictably diverged, and originalists generally settled on something like a doctrinaire textualism: a search for the precise meaning of the words of the Constitution or a statute as they would have been understood at the time of enactment.
Drakeman shows, however, that the search for the lawmaker’s intent has governed centuries of legal interpretation. Moreover, he demonstrates that the increasingly technocratic tools used to ascertain original meaning–such as searches of linguistic databases of Founding-era texts–are less accurate than flipping a coin.
Drakeman argues that the intent of lawmakers can be ascertained more accurately than public meaning can be. Where original intent is difficult to apply to contemporary circumstances, he writes, the traditional approach of legal interpreters has been to ask about ends and means: What problem was the legislator trying to solve, and what means did he or she use to do so?
The acid test of constitutional sincerity is whether one’s policy preferences and constitutional interpretation ever diverge. They do for Drakeman. He shows several instances, such as the Affordable Care Act, in which a law he opposes on the grounds of policy is nonetheless constitutional when judged by original intent.
The book is compelling. One hopes it will revive what in many corners is regarded as an already settled debate between original public meaning and original intent.