Originalism holds that the Constitution should be interpreted in accordance with its original meaning. But how does one determine the original meaning? There have been two leading theories about how to do this: original intent and original public meaning.
We propose a third theory of how to determine the original meaning (or, put differently, a gloss on the other two theories): original methods originalism. We believe the more accurate way to determine the original meaning of the Constitution is to employ the interpretive rules that the Framers’ generation would have deemed applicable to the Constitution.
When people speak or write, they rely on a variety of background rules to communicate. The language they are using; the meaning of the words; the grammatical rules, etc. If they believed those background rules were different, they would express their meaning differently. The same point holds for the interpretive rules. People who write a legal text assume that it will be interpreted in accord with legal interpretive rules. If the rules were different, they would have expressed their meaning differently. Thus, the rules that people at the time would have deemed applicable to the document must be followed to determine its meaning.
This approach has important implications for both the original intent and original public meaning approaches. If one starts with an original intent approach, it leads one immediately to an inquiry into the original interpretive rules. Just as one assumes that a group of enactors expressed their ideas according to ordinary meanings and grammatical rules, so one assumes that they did so according to the applicable interpretive rules.
If one starts with an original public meaning approach, it also leads towards the original interpretive rules. The most common approach to determining the original public meaning is to ask how a reasonable and informed person would have understood the text. But a such a person would know that the applicable interpretive rules would be applied to this text. Thus, both the original public meaning and original intent should lead interpreters to look at the original interpretive rules.
A key question, then, is what were the original interpretive rules. This is an important area where additional work – another book – would be needed. We are, however, familiar enough with the much of the material relating to the original interpretive rules to say a few words.
First, it is sometimes claimed that the Constitution was a new document and therefore there were no existing interpretive rules. But that is mistaken. There were state constitutions that were interpreted, and these interpretations used many of the statutory interpretive rules. This is not surprising since the Framers’ generation thought of a constitution as a kind of superstatute. Finally, interpretative rules that were relevant to all written documents would of course also be relevant to the Constitution.
Second, what was the content of those interpretative rules? We are confident that these rules were generally originalist. They either looked to the text or the intent of the authors of the Constitution. A harder question is whether they favored original public meaning or original intent. Our tentative view is that they were a mixture of the two, ultimately looking to the intent of the authors, but deriving that intent from the words and objective circumstances of the law.
Finally, we should note an important implication of original methods originalism for the theory of construction. The theory of construction holds that the meaning of ambiguous or vague provisions often runs out and therefore it is necessary to resolves these uncertainties with extraconstitutional considerations. But the original interpretive rules may provide methods for resolving these ambiguous or vague provisions. For example, imagine that the interpretive rules resolved ambiguous or vague provisions by choosing the meaning that best comports with the purpose of the provision. And imagine that the interpretive rules said, in close cases, choose the meaning which is more likely than the alternative meaning (even if it was only slightly more likely). Under these rules, there might not be any situations where the meaning of the provision runs out and therefore no opportunity for construction.