"The Interpretive Force of the Constitution's Secret Drafting History"
Georgetown Law Journal, Forthcoming
BY: VASAN KESAVAN
Independent
MICHAEL STOKES PAULSEN
University of Minnesota Law School
Paper ID: Minnesota Legal Studies Research Paper No. 04-11
Contact: VASAN KESAVAN
Email: Mailto:[EMAIL PROTECTED]
Postal: Independent
No Address Available,
Co-Auth: MICHAEL STOKES PAULSEN
Email: Mailto:[EMAIL PROTECTED]
Postal: University of Minnesota Law School
229 19th Avenue South
Minneapolis, MN 55455 UNITED STATES
ABSTRACT:
Originalism as a methodology of constitutional interpretation
has, ironically, itself gone through a series of changes over
the past quarter century. From original intent to original
understanding to (most recently) original meaning, originalism
has been an evolving theory. With these subtle changes in
methodology have come significant changes in views of the status
and weight to be accorded various extrinsic sources for aiding
in understanding the Constitution's meaning.
This Article addresses the proper interpretive force of the
Constitution's secret drafting history - the Records of the
Philadelphia Convention of 1787 - within a coherent theory of
originalism. We argue that the Philadelphia debates, unavailable
to those who actually ratified the Constitution and brought the
dead words on parchment to constitutional life, are nonetheless
highly relevant sources for understanding the Constitution - if
(and only if) the relevant inquiry is the objective meaning that
the document's words and phrases would have had, in context, to
ordinary, reasonably well-informed speakers and readers of the
English language at the time of the Constitution's adoption,
rather than the subjective intentions or expectations of any
particular body or group (like the Framers or the Ratifiers). A
study of the interpretive force of the Philadelphia Records
sheds much light on competing theories of originalism in
constitutional interpretation - and vice versa.
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Professor Joseph Olson Hamline University School of Law
tel. (651) 523-2142 St. Paul, Minnesota 55104-1284
fax. (651) 523-2236 <[EMAIL PROTECTED]>
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