For virtually all of Western legal history, when judges interpreted legal texts, their goal was to identify the intent of the lawmaker. For the past 50 years, however, constitutional theorists have shifted their focus away from the Framers and have instead emphasized either the original public meaning or a host of living, common sense, consequentialist, moral, or pragmatic alternatives.
My goal in The Hollow Core of Constitutional Theory (Cambridge University Press 2020) is to bring interpretation back to its historical core: a search for the lawmakers’ intentions. Doing so is practically feasible, theoretically defensible, and equally important not only for discovering the original meaning but also for deciding how to apply the Constitution today.
What is interpretation?
There has been a straightforward answer to that question since the Roman era: “Every statute ought to be expounded according to the intent of them that made it,” wrote Lord Coke in the 1600s, summarizing what was by then a very well-established tradition. Blackstone echoed the same theme 100 years later: the “fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made.” Likewise American Framer James Wilson noted that “[t]he first and governing maxim in the interpretation of a statute is . . . to discover the meaning of those . . . who made it.”
One of the earliest commentaries on the Constitution said in 1825 that the “true rule” of interpretation is “to deduce the meaning from its known intention and its entire text.” A few years later, Justice Joseph Story cited the “first and fundamental rule” of interpreting legal instruments, which is “to construe them according to the sense of the terms, and the intention of the parties.” At the beginning of the twentieth century, Professor John Manning declared: “The method of interpretation employed in the Roman Law is the will of the prince or law maker, and in all free countries the will of the legislative body.” (This John Manning should not be confused with his namesake who, 100 years later, celebrated the near universality of “intent skepticism.”)
That was the law for about 20 centuries. Then what happened?
Living constitutionalists and originalists overreacted to each other.
Those favoring the various living approaches wanted to be free of the “dead hand” of the Framers. Meanwhile, originalists wanted to avoid judicial lawmaking, especially when it resulted from an ostensibly historical approach that really just involved cherry picking from the Framers to support a foregone conclusion. For some prime examples, see Church, State and Original Intent.
With even the originalists looking only for the text’s public meaning, the Framers themselves — and their debates, negotiations, compromises, and decisions — disappeared from constitutional theory. In fact, both sides made many of the same arguments for ignoring the Framers intentions.
The “intent skepticism” catechism goes something like this:
- The Ratifiers, not the Framers, constituted the true lawmakers.
- The Summing Problem: There is no reasonable way to aggregate the intentions of the many Framers or Ratifiers.
- The Framers had to use the public meaning so people would understand the law.
- “The Times They are a-Changing.” Some originalists may disagree with this one, but the “dead hand” problem animates many of the other approaches to constitutional theory, and even Justice Antonin Scalia in Kyllo v. United States acknowledged that the Constitution needs to account for the advance of technology.
Since originalists, living constitutionalists, and just about everybody else has adopted these points, they have not been analyzed as carefully as they need to be. The first one — Article VII’s focus on the ratification process — would seem to settle the issue, and we need to address that red herring first.
The Framers are the constitutional lawmakers.
The charge to the Constitutional Convention said that its “sole and express purpose” was to revise the Articles of Confederation, which could be amended only with the consent of the “legislatures of every state.” But the Convention came up with an entirely new Constitution and did not submit it to the legislatures. Instead, the Framers bootstrapped their way into a new constitutional order by designing a new process: ratification by conventions of only nine states. The Articles of Confederation were dispensed with, and the process of ratification emerged, solely on the Framers’ own say so. Article VII is one of legal history’s great misdirects, a classic Wizard of Oz-ian pay no attention to the Framers behind the curtain.
The summing problem matters but not the way everybody thinks.
The question of how to identify a single intent of a lawmaking body has been around as long as legislatures. As Richard Ekins has shown in The Nature of Legislative Intent, what interpreters have always looked for is the nature of the decision about ends and means that resulted in the final language. The Framers may have hoped for many different outcomes when they arrived at the Convention, but, when it came to the final language, they knew they were voting on a particular way to address a specific issue. That is why it is important to look at the debates to understand what the Framers were talking about and to see how the compromises emerged.
In fact, the “semantic summing problem” makes the Framers’ understandings essential. Some important terms clearly had multiple meanings. In a case from the 1790s, the Court’s analysis of dictionaries and commentaries led to two entirely plausible definitions of the word “excise,” leading to opposite outcomes. To resolve the definitional problem, Justice William Paterson focused on what had been “obviously the intention” of his fellow Framers. He pointed out that “the Constitution . . . was the effect of mutual sacrifices and concessions; it was the work of compromise.” Paterson’s decision was based on the final deal struck by the Convention even though he, as a Framer, had hoped for a different outcome.
Americans had come from a number of countries and were spread across a large geographical area. Regional language uses varied considerably, and the Founding Era semantic summing problem is more common than we might expect based on our own language use. I am not arguing here for interpretations that are contrary to how the public could have understood the meaning of the text. But interpreters need to know which public meaning is the right one in a linguistic environment that was far less settled than our own. Identifying the lawmakers’ intentions has played that important role for many centuries.
The Ratifiers and the public knew which public meaning was intended not only by the context but also from reports by the delegates. Framers were present at the ratifying conventions, and one Anti-Federalist delegate published a lengthy account of the Convention. Moreover, our own principal sources for the debates leading to the adoption of the Bill of Rights by the First Congress are the same newspaper reports that were published at the time.
What about changing circumstances?
As Justice Story pointed out, “No person can fail to remark the gradual deflections in the meaning of words from one age to another.” The key to determining how to deal with that eventuality is, once again, identifying the will of the lawmaker. By understanding both what the Framers did and why they chose to do it, courts can figure out how to apply the fixed text to changing circumstances without resorting to using their own policy preferences.
There are actually two kinds of updating cases. One involves things like technological progress. For example, if a nineteenth-century legislature had already decided that the government can regulate telegraphs, are telephones similar enough to be treated in the same way? In these cases, the courts are seeking to apply old answers to new forms of the question.
In the other type, the activities in question are not substantially different now than they were in the past, and the court asks whether society’s understandings have shifted so much that the result should change. Those who advocate a robust use of social change updating often argue that it is the same as keeping up with technology. But the social-and-cultural-change cases are actually the inverse of the technology cases. Rather than applying old answers to new questions, judges are considering whether they should give a new answer to an old question.
That leads to another summing problem. If the Court is being asked to strike down a law, especially a recent one, then it is clear that society’s views are divided. The risk is that the Court will replace the legislature’s judgment with what the justices themselves believe is a better policy. If they do so, they are no longer interpreting the Constitution. They are simply making a new law because they think it is better than the existing one.
Note that this is not necessarily an argument for a “Framers’ expected applications” approach. Whether the Framers meant for a clause perpetually to be applied as it would be in eighteenth-century America is a question to ask of the record. Lawyers in the Founding Era certainly understood dynamic interpretations, as when they invoked the Magna Carta in support of the patriot cause. As Justice Story observed, they would have expected some “deflections in the [constitutional] meaning” over time.
Should the Court make decisions that are not interpretations?
In the past, the claim that “the justices are just making it up” has been reserved for decisions with which we strongly disagree. But, over the last generation or two, a number of constitutional theorists have argued that the Court should make policy judgments and that traditional interpretive arguments can then be employed to provide a good “cover story.”
These arguments assume that courts are better judges of good policies than legislatures are. For that assumption to be true, courts must be able to accurately predict the consequences of their decisions — that is, they must be able to assess whether the goals they have in mind will actually occur in the real world. Yet, courts are not as well constituted to make judgments about future outcomes as larger and more diverse lawmaking bodies are, nor are there straightforward mechanisms for courts to modify decisions that are not working out as expected.
Researchers have learned a great deal about what kinds of groups make the best predictions, and courts have few of the relevant qualities. In Expert Political Judgment, Philip Tetlock has invoked Isaiah Berlin’s famous fox and hedgehog analogy to observe that if “we want realistic odds on what will happen next,” it is better to ask “Berlin’s prototypical fox,” which “know[s] many little things, draw[s] from an eclectic array of traditions, and accept[s] ambiguity and contradiction” than to ask the hedgehog, which “toil[s] devotedly within one tradition, and reach[s] for formulaic solutions to ill-defined problems.” But judges are more like hedgehogs, and “formulaic solutions to ill-defined problems” is a reasonable description of a number of major Supreme Court decisions.
Even worse, this expansive judicial power creates a risk that the concept of interpretation will be skewed out of recognition. If legal theorists believe that the Court should be the ultimate decision maker for controversial issues of social and political policy, and if they cling to the idea that when the Court does so, it must be “interpreting” the Constitution, then they have little choice but to advance a capacious enough theory of constitutional interpretation to include not actually interpreting the Constitution.
A far better approach is transparency. If the Court is going to be a policymaker, it should act and sound like one. Instead of employing language about the Constitution, the opinions would read like legislative committee reports. They would describe the pragmatic, political, consequentialist, or other analyses that convinced the justices that they were doing the right thing. Meanwhile, the other branches of the federal government and the public can think about the separation of powers issues and make a decision about the proper role of the Supreme Court in twenty-first-century America. From all we know about making sound policy judgments, however, courts are not well-suited to the role.
Returning to the core.
This brings us back to what judges are well suited to do and have centuries of experience doing: interpreting legal texts in light of the intentions of the lawmaker. The best alternative to judicial policymaking is for lawmaking bodies — the people’s representatives — to make policy. And for those policies to be effectively implemented in cases before the courts, judges need to focus on applying the texts representing those policy judgments in light of what the lawmaker originally intended.
Donald L. Drakeman is Distinguished Research Professor in the Center for Citizenship and Constitutional Government at the University of Notre Dame, and a Fellow in Health Management at the University of Cambridge. His writings have been cited by the Supreme Courts of the United States and the Philippines, and his seven books include The Hollow Core of Constitutional Theory (Cambridge, 2020), and Church, State, and Original Intent (Cambridge, 2010).