No Other Epitaph

Written documents should be interpreted with an eye toward discerning the intent of the author. When the Constitution of the United States is the text under consideration, the relevant intentions are those of the men who drafted and ratified the document. This proposition reflects a long-established canon of construction: common-law judges as far back as the 12th century invoked original intent. So did Sir Edward Coke, Matthew Bacon, natural lawyer Thomas Rutherforth, William Blackstone, Thomas Jefferson, and James Madison, who wrote that he "entirely concur [red] in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of its powers."

Today, the jurisprudence of original intent is severely out of favor among most academics and many judges such as Associate Justice Ruth Bader Ginsburg, who in 1985 wrote approvingly of "boldly dynamic interpretation . . . departing radically from the original understanding." Judicial departures from the Kramers' understanding occurred relatively infrequently during the Republic's early years, with the spectacular exception of Chief Justice John Marshall's national bank decision McCullock v. Maryland (1819). But...

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