Jack M. Balkin (Yale University - Law School) has posted The Construction of Original Public Meaning (Constitutional Commentary (forthcoming 2016)) on SSRN. Here is the abstract:
Christina Mulligan, Michael Douma, Hans Lind and Brian Quinn have recently shown that during the ratification of the Constitution in 1787-1788, German and Dutch translations of the Constitution were distributed to non-English speakers in the crucial states of Pennsylvania and New York. These translations differ from the English text in interesting and important ways. As a result, English speakers may have understood the proposed Constitution in one way, while non-English speakers may have understood it quite differently.
This essay uses this example to show why original public meaning is not a set of facts that lawyers simply discover and report. Rather, it is a theoretical construction that lawyers fashion in order to do the work of constitutional interpretation. There is no single way to construct original public meaning from the materials of the past. What we do construct depends in part on what we think constitutions are for and how they are supposed to work. It also depends on the practical needs of lawyers in search of a distinctively legal meaning that they can employ in legal argument.
Accounts of original public meaning bring some parts of the past forward and leave others behind; they view the past through the lens of theoretical and practical commitments. This would be true even if there had been only one version of the Constitution distributed in English in 1787-1788, because there are likely to be multiple understandings of the meaning of even a single text among the ratifying public. If our account of original public meaning is at all sensitive to the actual understandings of actual people living at the time of adoption, it will pick up these disagreements, and it will have to decide what to do with them. Perhaps the best way to deal with this problem is to choose a version of original public meaning that is the least sensitive to these differences in understanding, and that focuses as much as possible on areas of likely and overwhelming agreement. This approach won’t solve all problems, as Mulligan and her colleagues demonstrate. But it will create fewer difficulties than other approaches to original public meaning.
Accordingly, the second part of the essay defends a relatively “thin” theory of original public meaning—essentially confined to the original semantic meaning of the words, taking into account any generally recognized terms of art, and any background context necessary to understand the text. First, a thin theory of original meaning is most consistent with how written constitutions operate and what they are for; I call this a “framework” model of constitutions, as opposed to a “skyscraper” model. Second, because it focuses on areas of likely agreement, a thin theory is best equipped to deal with inevitable differences of understanding and belief among the ratifying public. Third, a thin theory features a division of labor between interpretation (which focuses on original public meaning) and constitutional construction, which deals with questions that cannot be decided by original meaning alone. Because constitutional construction treats history as a resource, not as a command, it is better able to deal with disagreements among the ratifying public, as well as the recurrent problem of translating the ratifying public’s concerns in their time to our concerns in our own. Although it excludes a significant amount of history from the narrower task of interpretation, the thin theory makes far more history available for the important task of constitutional construction.
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