# Constitution of the United States of America/Annotated/Introduction/Original Meaning and Constitutional Interpretation

Online at https://constitution.congress.gov/browse/essay/intro.8-3/ALDE_00001304/
Whereas textualist approaches to constitutional interpretation focus solely on the text of the document, originalist approaches consider the meaning of the Constitution as understood by at least some segment of the populace at the time of the Founding. Though this method has generally been called “originalism,” constitutional scholars have not reached a consensus on what it means for a judge to adopt this methodology for construing the Constitution’s text. Disagreements primarily concern which sources scholars should consult when determining the fixed meaning of the Constitution. Originalists, however, generally agree that the Constitution’s text had an “objectively identifiable” or public meaning at the time of the Founding that has not changed over time, and the task of judges and Justices (and other responsible interpreters) is to construct this original meaning.
For many years, some prominent scholars (such as Robert Bork) argued that in interpreting the Constitution, one should look to the original intent of the people who drafted, proposed, adopted, or ratified the Constitution to determine what those people wanted to convey through the text. According to this view, original intent may be found in sources outside of the text, such as debates in the Constitutional Convention or the Federalist Papers. For example, in Myers v. United States, Chief Justice William Howard Taft, writing for the majority, held that the President did not need legislative approval to remove an Executive Branch official who was performing a purely executive function. The Court sought the original meaning of the President’s removal power by looking at English common law, the records of the Constitutional Convention, and the actions of the first Congress, among other sources. Relying on these various sources, in his opinion for the Court, Chief Justice Taft wrote that “[t]he debates in the Constitutional Convention indicated an intention to create a strong [E]xecutive.” Notably, the Myers Court did not look at sources that would likely indicate what ordinary citizens living at the time of the Founding thought about the President’s removal power.
Over the course of Justice Antonin Scalia’s near thirty-year tenure on the Supreme Court, he and several prominent scholars explained that, as originalists, they were committed to seeking to understand original public meaning of the Constitution. This method considers the plain meaning of the Constitution’s text as it would have been understood by the general public, or a reasonable person, who lived at the time the Constitution was ratified. This approach has much in common with textualism but is not identical. The original public meaning approach to understanding the Constitution is not based solely on the text, but, rather, draws upon the original public meaning of the text as a broader guide to interpretation. Justice Scalia’s majority opinion in District of Columbia v. Heller illustrates the use of original public meaning in constitutional interpretation. In that case, the Court held that the Second Amendment, as originally understood by ordinary citizens, protected an individual’s right to possess firearms for private use unconnected with service in a militia. Justice Scalia’s opinion examined various historical sources to determine original public meaning, including dictionaries in existence at the time of the Founding and comparable provisions in state constitutions.
Those in favor of the use of original meaning as an interpretive approach point to its long historical pedigree and its adherence to the democratic will of the people who originally framed and ratified the Constitution. They point as well to the basic logic that a law, in order to function as law, has to have a fixed or settled meaning until it is formally amended or discarded. Proponents of originalism also argue that the approach limits judicial discretion, preventing judges from deciding cases in accordance with their own political views. Some originalists argue that changes to the Constitution’s meaning should be left to further action by Congress and the states to amend the Constitution in accordance with Article V. Proponents also credit the approach with ensuring more certainty and predictability in judgments.
Those who are skeptical of this mode of interpretation underscore the difficulty in establishing original meaning. Scholars cannot always agree on original meaning, and, perhaps, people living at the time of the Constitution’s adoption may not have agreed on a particular meaning either. As such, critics argue, originalists will have merely constructed a meaning that had never actually been approved by the people who drafted or ratified the actual text being construed. Such a view may stem from the potentially wide variety of sources of such meaning; conflicting statements by these sources; conflicting understandings of statements in these sources; and gaps in historical sources. Thus, because of this lack of consensus on the original meaning of the Constitution, judges may simply choose the original view that supports their political beliefs. Opponents also argue that originalism requires judges to act as historians—a role for which they may not be well suited—as opposed to as decision makers.
While Justice Elena Kagan, for example, has conceded that “we [the Justices] are all originalists,” many critics question the extent to which originalism is a workable theory of constitutional interpretation. They argue that originalism is an inflexible, flawed method of constitutional interpretation, contending that the Constitution’s contemporaries could not have conceived of some of the situations that would arise in modern times. They argue further that interpreting the Constitution based on original meaning may thus fail to protect minority rights because women and minorities did not have the same rights at the time of the Founding (or ratification of the Civil War Amendments) as they do today. In addition, some skeptics of originalism challenge the view that Article V should be the exclusive vehicle for constitutional change, as that article requires a two-thirds majority vote of the House of Representatives and Senate to propose an amendment, and ratification by three-fourths of the states for the amendment to become part of the Constitution. The high threshold the Constitution creates for formal amendment has prompted arguments that the Constitution’s meaning should not be fixed in time, but, rather, should accommodate modern needs.