Why Our Search for the Constitutions Original Meaning is So
By Jack Rakove
hough Americans are not an especially patriarchal people,
one form of ancestor worship still flourishes: the homage we pay to the wisdom of the
Founding Fathers. The most notable form of this homage is the belief that in
interpreting the Constitution our true goal should be to recover its original
meaning or the
original intentions of its adopters. Originalism, as it is called, assumes that a
fixed set of meanings was locked into the Constitution at the moment of its adoption,
and that these meanings enjoy a supreme legal authority that should guide and
constrain the course of interpretation.
Nothing in the Constitution literally directs us to prefer its original meaning over
all other modes of interpretation; originalism is always our choice, not a mandate of
the past. To its advocates, originalism pro-mises to prevent politically unaccountable
judges from imposing their own values and preferences on the text of the
Constitution. To its critics, originalism often sounds like a retrograde effort to
subordinate pressing claims for present justice or adaptations in governance to flawed
and obsolete understandings of the past.
In practice, of course, few originalists really argue that we should turn the clock of
government back to 1787 (or the state of race relations back to the 1860s, when
Congress proposed the critical Reconstruction amendments). So, too, few critics of
originalism would really dismiss evidence of the intentions underlying a particular
provision as an irrelevant element in its interpretation. But the weight this evidence
should receive remains a source of dispute.