Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning

Abstract

According to strict form of originalism, Constitution derives its authority from its ratification during particular periods in American history. Under this view, any departure from understandings of those discrete periods robs constitutional interpretation of its claim to legitimacy. The political theory underlying strict originalism is a form of social contract theory: unelected judges may displace legislative decisions in name of Constitution, but only because Constitution is a social contract to which consent was validly given through ratification. Although there are very few strict originalists, virtually all practitioners of and commentators on constitutional law accept that original meaning has some relevance to constitutional interpretation. Most, if not all, of us are what Paul Brest has called moderate originalists; we are interested in the framers' intent on a relatively abstract level of generality.