May 21, 2012
It is often said that the Constitution should be interpreted according to its “original intent, “original understanding,” or “original meaning.” Is there any difference between these concepts? And if so, which is the proper standard?
This is an area in which there has been a great deal of confusion, largely because few constitutional writers are familiar with how 18th-century lawyers and judges construed documents.
We can begin clearing the confusion by defining the terms. The phrase original intent usually means the subjective opinion of those who wrote the Constitution as to what a particular provision was supposed to communicate. Original intent also is called the intent of the Framers. Researchers try to deduce the original intent by examining both direct evidence (what the 55 drafters said during the Constitutional Convention), and indirect or circumstantial evidence. Examples of the latter include, among other things, what people said about the instrument during the ratification debates, the meaning of key words in common discourse and in contemporaneous dictionaries, and their meaning in legal and literary sources.