Methods of the New Originalism help us understand what sort of text the Constitution was understood to be when it was adopted. The text refers to itself, and so inquiries into the original understanding of the self-referential phrase “this Constitution” may illuminate the character of the document when it was ratified. Evidence of the usage of the time leads to the unsurprising conclusion that the Constitution of 1787-1789 was understood to be an account of a social compact — a political act — authorizing a new central government. In the original understanding, the Constitution authorized the creation of common-law courts. Judges and justices took their oaths, not to a document or a text, but to the federal, republican form and character (the “constitution”) of the government, and the truths on which it was founded. Judges reviewing the acts of political institutions were to be guided in their decisions, not by turning the aphoristic text of the Constitution into enforceable rules, but by judicial precedents and the maxims of justice and equality implicit in the structure and text of the Constitution, maxims expressed more fully in state constitutions and the Declaration of Independence. This is all familiar history, but it contradicts a premise of the New Originalism, an assumption that the Constitution was an enactment like a statute or contract, a text that judges must apply today according to its fixed terms to resolve disputes. Amendments to the Constitution were enacted as legislation and some, particularly the Fourteenth Amendment, were expected to be interpreted and applied like statutes, but the original Constitution of 1787-1789 was not understood in that way.
Thursday, April 21, 2016
Novick on the Originial Meaning of "This Constitution"
Sheldon Novick, Vermont Law School, has posted The Original Understanding of “This Constitution”: