The Authority of the Framers of the Constitution: Can Originalist Interpretation be Justified

Abstract

intention theories like Dworkin's can avoid this difficulty only by arguing that I have somehow misdescribed the facts concerning our Constitution's origin. One route for such an argument would claim that the originators had concepts but no conceptions. This seems a very unlikely story to tell about real people. The theory that the framers had conceptions but didn't care if different ones were immediately substituted for them seems equally unlikely. Only two other kinds of arguments are available. The first would invoke concepts of delegation and would argue that the originators intended their own conceptions to control interpretation for their contemporaries, but intended to permit different conceptions of the underlying concepts at later points in history. Professor Bickel, for example, [Vol. 73:1482 1518 ORIGINALIST INTERPRETATION argued that the existence of such an intention explained why Brown v. Board of Education9 was not inconsistent with the original understanding of the fourteenth amendment, notwithstanding that the originators did not intend to outlaw racial segregation.96 A second and related argument would claim that the originators had no intentions relating to constitutional interpretation in the distant future. Insofar as the framers understood themselves as producing a bargained contract, their intentions are most realistically understood to be limited to the period when their interests were implicated. Insofar as the framers understood themselves as correctly interpreting the deep consensus, they were wise enough to know that interpretations that seem correct to one generation might quite reasonably seem mistaken to later ones. While either the delegation or no-intention view would free interpretive institutions from the originators' interpretations or conceptions, neither theory authorizes taking advantage of that freedom. In the absence of the authority that comes from popular attitudes or provision of good reasons, there is no more reason for the Court today to follow these theories of original intent than there is for it to follow any others of the original intentions. Without appeal to originalism, the justification for the Court's behavior must come from some other direction-for example, from the development of a political theory that directly justifies the Court's interpreting the deep consensus. Under such a theory, the language of the Constitution and the original intention might be important evidence for an originalist interpretation. Its authoritativeness would derive not from originalism, however, but from the persuasiveness of the deep-consensus political theory. The nature of the basic problem here should be clear from our examination of Professor Rawls's theory of justice.