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02/23/2020

Mark Graber: Original Expectations
Michael Ramsey

Mark Graber (University of Maryland - Francis King Carey School of Law) has posted Original Expectations (Connecticut Law Review, forthcoming) (29 pages) on SSRN.  Here is the abstract:

Professor Kay’s increasingly lonely crusade for interpreting constitutional provisions in light of their original intentions captures how constitutions should be implemented immediately after ratification, with the important proviso that expectations matter as much as intentions. Insisting that the constitution on day one mandates X even though everyone responsible for the constitution thought the constitution mandated not-X violates common sense. A jurisprudence of original intentions at day one acknowledges that constitutions are political documents that serve political purposes and avoids making linguistic theory the practical arbiter when debates break out over impeachment procedures, the regulation of slavery, and the status of state sovereign immunity. At day one, Professor Kay’s originalism best captures the constitutional commitment to rule of law and the underlying constitutional politics of ratification. Intentions and expectations guide the planning processes facilitated by the rule of law. Framers, at least in the United States, spend far more energy making predictions about how the constitution will work than in laying out the meaning of particular phrases. The persons responsible for a constitution focus on intentions and expectations rather than meanings because their concern is with how the constitution as a whole will work and not with the best interpretation of a particular constitutional clause.

The reasons for preferring original intentions/expectations to original public meanings at day one provides grounds for abandoning all originalisms at day ten. If original public meaning cedes too much constitutional authority to linguists at the moment of ratification, both original public meaning and original intentions/expectations cede too much constitutional authority to historians over time. Doctrinalism at day ten better captures the constitutional commitment to rule of law than any form of originalism. People when planning are far more likely to assume that constitutional decision makers will continue to do what they are doing than base decisions on original public meanings that may be unknown to both the planners and constitutional decision makers. Purposivism at day ten better incorporates constitutional developments, particularly those constitutional developments ratifiers did not anticipate, than either original public meaning or original intentions/expectations.