John McGinnis on Originalism and Framers' Intent
Michael Ramsey
At Liberty Law Blog, John McGinnis: Public Meaning Originalism Is Not Indifferent to Evidence About the Intent of the Framers (responding to this post by Frank Buckley). An excerpt:
Few, if any, public meaning originalists believe that public meaning dispenses with examining what the Framers intended. What the Framers intended to do with words they wrote is often good evidence of what the public meaning was, particularly if they made their intent manifest publicly, as in the Federalist Papers. That is why almost all originalist scholarship of the public meaning variety regularly consults such materials.
On the other hand, the original intent does not collapse into public meaning. For public meaning originalists, the Framers’ intent does not constitute the public meaning conceptually and it may not even provide powerful evidence of that meaning if it were not known and contrary to other evidence of what their words would have meant. Moreover, there is ample other evidence from materials at the time that bears on the meaning of the words and phrases in the Constitution, such as newspapers and dictionaries of the time—material also regularly cited by public meaning originalists.
And further:
One rule of the time [that the Constitution was adopted] attested by jurists was to consult intent if the meaning collected from the words alone were ambiguous. That rule would provide a specific reason to examine intent even within the public meaning paradigm.
I agree, despite what I wrote here and here (and elsewhere) focusing on text over intent. I think, though, there's substantial difficulty in determining a single collective intent, especially if one proceeds at a relatively high level of generality, as Professor Buckley tends to.