Thursday, February 7, 2008

Natelson on The Real Original Understanding of Original Intent

Professor Robert Natelson of the University of Montana has posted a 2007 article from the Ohio State Law Journal on "The Founders' Hermeneutic: The Real Original Understanding of Original Intent." His abstract reads:
This Article addresses whether the American Founders expected evidence of their own subjective views to guide future interpretation of the U.S. Constitution. The Article considers a range of evidence largely overlooked or misunderstood in earlier studies, such as contemporaneous rules of legal interpretation, judicial use of legislative history, earlier American public debate, and pronouncements by state ratifying conventions. Based on this evidence, the Article concludes that the Founders were original-understanding originalists. This means that they anticipated that constitutional interpretation would be guided by the subjective understanding of the ratifiers when such understanding was coherent and recoverable and, otherwise, by the Constitution's original public meaning.

Given the enduring interest in original intent, I'm guessing this one will get a lot of attention.

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