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05/22/2022

Angus McClellan on Originalist Methodology
Michael Ramsey

At Law & Liberty, Angus McClellan (James Madison Program, Princeton University): Getting Closer to the Constitution.  From the introduction:

The future of conservatism in the courts still lies in text-based originalism. But it is true that the current approaches to originalism often rely on an undisciplined hodgepodge of original sources. Indeed, originalism comes in forms that variously give greater or lesser weight to the convention debates, the Federalist, contemporary public perceptions, records from the state ratifying conventions, private letters, Anglo-American common law, historical events, congressional and executive action, early case law, and so on. This is all well and good, but it is unclear which sources deserve the most weight once the text itself becomes vague or ambiguous.

If jurists and scholars crave certainty and legitimacy in the judiciary, then the ultimate goal should be to arrive at a clear method of interpretation that consistently assigns weight to different categories of original sources on a hierarchical scale. Crystallizing text-based originalism into a more coherent and universally applicable method of constitutional interpretation would help to secure the legal principles that define and balance the American forms of liberty, order, justice, and power. We are not alone in this venture. The ghosts of giants still stand among the pillars of our libraries, waiting for us to rediscover their immortal remains. Some scholars just need to get back on their shoulders and start looking around.

With that in mind, originalists should, within the framework of the Blackstonian method of statutory interpretation, rely first on the earliest case law—rather than the latest precedents—when trying to determine the meaning of constitutional text. In other words, if the words of the Constitution are unclear or ambiguous, and if the context of those words fails to produce clear meaning, then the first non-textual step in determining meaning should be a close examination of the first eras of legal interpretation of those words, particularly in the federal judiciary. This is the judicial strain of what pre-Progressive jurists called “contemporaneous construction” or “contemporaneous exposition,” expressed by the legal maxim, contemporanea expositio est fortissima in lege. It is originalism generally—an umbrella term for what some modern jurists and scholars have divided into concrete originalism and abstract originalism. One might call the judicial strain advocated here as simply, “concrete legal originalism.”

While I agree that near-contemporaneous interpretations are reasonable evidence of the original meaning, I don't think they necessarily are the best evidence (nor would I necessarily privilege judicial interpretations over other commentators).  My view is that evidence of meaning from before the drafting and ratification is even better, when available -- because pre-constitutional interpretations of language later used in the Constitution isn't affected by how interpreters want the Constitution to be read after the fact.  Also I think one can distinguish between different types of immediate post-ratification interpretations.  For example, interpretations that run against the interpreters ideological or institutional interests are better than those that don't; and interpretations that rest on a rigorous explanation of the text are better that those that just express a view on what would be the best approach.  For my further thoughts, see the first part of this article: Missouri v. Holland and Historical Textualism.