The End of Originalism? Comparing-Cultures and Text Exegesis

Abstract

When it comes to interpreting the Constitution of the United States, constitutional scholars have long ignored the fact that the United States were a multilingual society at their inception. This essay will examine the multi-lingual situation of the eighteenth century United States (with a special focus on the German and Dutch minorities) and its relevance for the interpretation of the Constitution today, addressing theories as original intent originalism, original common meaning originalism and “living constitution.” Using a translation-based approach, it will suggest that a current paradigm in constitutional interpretation, New Originalism, is based on the dangerous illusion that the text of the Constitution had a single, discernible meaning for the Founding-Era’s general public, a public that was in fact heterogenous not only in terms of culture and race, but also of language, rendering any historical plain meaning approach a precarious proceeding.