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INTRODUCTION ............................................................................................................. 703
I. THE FLIGHT FROM INTENTION .............................................................................. 704
II. DEFINING THE ORIGINAL INTENTIONS ................................................................... 709
III. WHEN MEANINGS DIVERGE ................................................................................. 712
IV. THE AUTHORITY OF CONSTITUTIONAL MEANING .................................................. 714
V. THE CONSTRUCTION OF PUBLIC MEANING ............................................................ 719
CONCLUSION ................................................................................................................ 725
INTRODUCTION
There is now a standard story about the originalist approach to constitutional interpretation.1 In the 1970s and 80s certain constitutional law scholars became concerned with what seemed to them the ungrounded jurisprudence of the United States Supreme Court. They began to articulate a theory of interpretation that stressed the obligation of the judge to apply the Constitution in its original - and therefore unchanging - sense. By this they meant the sense intended by the people who wrote and ratified it. (I say they "articulated" this view because, prior to that time, it was already the prevailing conventional, if implicit, understanding of constitutional interpretation.) A counterattack by the far more numerous academic proponents of an expansive method of judicial review challenged the practicability, even the coherence, of any attempt to recover those original intentions. The originalists, in response, redefined what they took to be the object of constitutional interpretation. They abandoned any pretension that the judge should attempt to ascertain the meaning actually intended by the constitution-makers. Rather, the aim of interpretation was to discover the "objective meaning" of the enacted text - the meaning it would have had for reasonably competent users of the language at the time of adoption. The actual mental states of the drafters and ratifiers were, in themselves, irrelevant. In this "new and improved" form,2 originalism has (mainly) carried the day: "We are all originalists now."3
This Article reexamines the shift from the subjective intent of the constitution-makers to the "original public meaning" of the Constitution's words.4 Part I critically reviews the apparent reasons for this change. Part II clarifies the definition of original intention interpretation and shows that, in the actual course of adjudication by honest and competent judges, original intention and original public meaning interpretation should usually yield the same result. Part III isolates the limited circumstances in which these two interpretive methods might diverge, and points out the anomalies that arise when interpretation is limited to public meaning in those situations. Parts IV...