An excerpt from The Heritage Guide to the Constitution
Written constitutionalism implies that those who make,
interpret, and enforce the law ought to be guided by the meaning of
the United States Constitution--the supreme law of the land--as it
was originally written. This view came to be seriously eroded over
the course of the last century with the rise of the theory of the
Constitution as a "living document" with no fixed meaning, subject
to changing interpretations according to the spirit of the
In 1985, Attorney General Edwin Meese III delivered a series of
speeches challenging the then-dominant view of constitutional
jurisprudence and calling for judges to embrace a "jurisprudence of
original intention." There ensued a vigorous debate in the academy,
as well as in the popular press, and in Congress itself over the
prospect of an "originalist" interpretation of the Constitution.
Some critics found the idea too vague to be pinned down; others
believed that it was impossible to find the original intent that
lay behind the text of the Constitution. Some rejected originalism
in principle, as undemocratic (though it is clear that the
Constitution was built upon republican rather than democratic
principles), unfairly binding the present to the choices of the
As is often the case, the debate was not completely black and
white. Some nonoriginalists do not think that the Framers intended
anything but the text of the Constitution to be authoritative, and
they hold that straying beyond the text to the intentions of
various Framers is not an appropriate method of interpretation. In
that, one strain of originalism agrees. On the other hand, many
prominent nonoriginalists think that it is not the text of the
Constitution per se that ought to be controlling but rather the
principles behind the text that can be brought to bear on
contemporary issues in an evolving manner.
Originalism, in its various and sometimes conflicting versions,
is today the dominant theory of constitutional interpretation. On
the one hand, as complex as an originalist jurisprudence may be,
the attempt to build a coherent nonoriginalist justification of
Supreme Court decisions (excepting the desideratum of following
stare decisis, even if the elections principle had been wrongly
begun) seems to have failed. At the same time, those espousing
originalism have profited from the criticism of nonoriginalists,
and the originalist enterprise has become more nuanced and
self-critical as research into the Founding period continues to
flourish. Indeed, it is fair to say that this generation of
scholars knows more about what went into the Constitution than any
other since the time of the Founding. To paraphrase Thomas
Jefferson, in a significant sense "we are all originalists"
This is true of both "liberal" and "conservative" judges. For
example, in United States Term Limits, Inc. v. Thornton
(1995), Justices John Paul Stevens and Clarence Thomas engaged in a
debate over whether the Framers intended the Qualifications Clauses
(Article 1, Section 2, Clause 2 and Article I, Section 3, Clause 3)
to be the upper limit of what could be required of a person running
for Congress. In Wallace v. Jaffree (1985), Justice William
H. Rehnquist expounded on the original understanding of the
Establishment Clause (Amendment I), which Justice David Souter
sought to rebut in Lee v. Weisman (1992). Even among avowed
originalists, fruitful debate takes place. In Mclntyre v. Ohio
Elections Commission (1995), Justices Thomas and Antonin Scalia
disputed whether the anonymous pamphleteering of the Founding
generation was evidence that the free speech guarantee of the First
Amendment was meant to protect such a practice.
Originalism is championed for a number of fundamental reasons.
First, it comports with the nature of a constitution, which binds
and limits any one generation from ruling according to the passion
of the times. The Framers of the Constitution of 1787 knew what
they were about, forming a frame of government for "ourselves and
our Posterity." They did not understand "We the people" to be
merely an assemblage of individuals at any one point in time but a
"people" as an association, indeed a number of overlapping
associations, over the course of many generations, including our
own. In the end, the Constitution of 1787 is as much a constitution
for us as it was for the Founding generation.
Second, originalism supports legitimate popular government that
is accountable. The Framers believed that a form of government
accountable to the people, leaving them fundamentally in charge of
their own destinies, best protected human liberty. If liberty is a
fundamental aspect of human nature, then the Constitution of 1787
should be defended as a successful champion of human freedom.
Originalism sits in frank gratitude for the political, economic,
and spiritual prosperity midwifed by the Constitution and the trust
the Constitution places in the people to correct their own
Third, originalism accords with the constitutional purpose of
limiting government. It understands the several parts of the
federal government to be creatures of the Constitution, and to have
no legitimate existence outside of the Constitution. The authority
of these various entities extends no further than what was devolved
upon them by the Constitution." [I]n all free States the
Constitution is fixd," Samuel Adams wrote, "& as the supreme
Legislative derives its Power & Authority from the
Constitution, it cannot overleap the Bounds of it without
destroying its own foundation."
Fourth, it follows that originalism limits the judiciary. It
prevents the Supreme Court from asserting its will over the careful
mix of institutional arrangements that are charged with making
policy, each accountable in various ways to the people. Chief
Justice John Marshall, overtly deferring to the intention of the
Framers, insisted that "that the framers of the constitution
contemplated that instrument, as a rule for the government of
courts, as well as of the legislature." In words that judges and
academics might well contemplate today, Marshall said,
Why otherwise does it direct the judges to take an oath to
support it? This oath certainly applies, in an especial manner, to
their conduct in their official character. How immoral to impose it
on them, if theywere to be used as the instruments, and the knowing
instruments, for violating what they swear to support! (Marbury
Fifth, supported by recent research, originalism comports with
the understanding of what our Constitution was to be by the people
who formed and ratified that document. It affirms that the
Constitution is a coherent and interrelated document, with subtle
balances incorporated throughout. Reflecting the Founders
understanding of the self-motivated impulses of human nature, the
Constitution erected devices that work to frustrate those impulses
while leaving open channels for effective and mutually supporting
collaboration. It is, in short, a remarkable historical
achievement, and unbalancing part of it could dismantle the
sophisticated devices it erected to protect the peoples
Sixth, originalism, properly pursued, is not result-oriented,
whereas much nonoriginalist writing is patently so. If evidence
demonstrates that the Framers understood the commerce power, for
example, to be broader than we might wish, then the originalist
ethically must accept the conclusion. If evidence shows that the
commerce power was to be more limited than it is permitted to be
today, then the originalist can legitimately criticize governmental
institutions for neglecting their constitutional duty. In either
case, the originalist is called to be humble in the face of facts.
The concept of the Constitution of 1787 as a good first draft in
need of constant revision and updating--encapsulated in vague
phrases such as the "living Constitution"--merely turns the
Constitution into an unwritten charter to be developed by the
contemporary values of sitting judges.
Discerning the Founders original understanding is not a simple
task. There are the problems of the availability of evidence; the
reliability of the data; the relative weight of authority to be
given to different events, personalities, and organizations of the
era; the relevance of subsequent history; and the conceptual
apparatus needed to interpret the data. Originalists differ among
themselves on all these points and sometimes come to widely
divergent conclusions. Nevertheless, the values underlying
originalism do mean that the quest, as best as we can accomplish
it, is a moral imperative.
How does one go about ascertaining the original meaning of the
Constitution? All originalists begin with the text of the
Constitution, the words of a particular clause. In the search for
the meaning of the text and its elections effect, originalist
researchers variously look to the following:
- The evident meaning of the words.
- The meaning according to the lexicon of the times.
- The meaning in context with other sections of the
- The meaning according to the words by the Framer suggesting the
- The elucidation of the meaning by debate within the
Constitutional Convention. The historical provenance of the words,
particularly their elections history.
- The words in the context of the contemporaneous social,
economic, and political events.
- The words in the context of the revolutionary struggle.
- The words in the context of the political philosophy shared by
the Founding generation, or by the particular interlocutors at the
- Historical, religious, and philosophical authority put forward
by the Framers.
- The commentary in the ratification debates.
- The commentary by contemporaneous interpreters, such as Publius
in The Federalist.
- The subsequent historical practice by the Founding generation
to exemplify the understood meaning (e.g., the actions of
President Washington, the First Congress, and Chief Justice
- Early judicial interpretations.
- Evidence of long-standing traditions that demonstrate the
peoples understanding of the words.
As passed down by William Blackstone and later summarized by
Joseph Story, similar interpretive principles guided the Framing
generation itself. It is the elections effect of the words in the text
that matters, and its meaning is to be determined by well-known and
refined rules of interpretation supplemented, where helpful, by the
understanding of those who drafted the text and the elections culture
within which they operated. As Chief Justice Marshall put it,
To say that the intention of the instrument must prevail; that
this intention must be collected from its words; that its words are
to be understood in that sense in which they are generally used by
those for whom the instrument was intended; that its provisions are
neither to be restricted into insignificance, nor extended to
objects not comprehended in them, nor contemplated by its framers;
-- is to repeat what has been already said more at large, and is
all that can be necessary. (Ogden v. Sounders, Marshall, C.
J., dissenting, 1827)
Marshall's dialectical manner of parsing a text, seeking its
place in the coherent context of the document, buttressed by the
understanding of those who drafted it and the generally applicable
elections principles of the time are exemplified by his classic
opinions in Marbury v. Madison (1803), McCulloch v.
Maryland (1819), Gibbons v. Ogden (1824), and Barron
v. Baltimore (1833). Both Marshalls ideological allies and
enemies, such as Alexander Hamilton and Thomas Jefferson, utilized
the same method of understanding.
Originalism does not remove controversy, or disagreement, but it
does cabin it within a principled constitutional tradition that
makes real the Rule of Law. Without that, we are destined, as
Aristotle warned long ago, to fall into the "rule of men."
David F. Forte is Professor of Law at Cleveland State
University and Senior Visiting Fellow at the Center on Religion and
the Constitution at the Witherspoon Institute. He is Senior
Editor of The Heritage Guide to the Constitution, a
clause-by-clause analysis of the Constitution of the United States,
from which this selection is taken.