Recently published, in the Federalist Society Review: Applying the Founders' Originalism, by Robert Natelson. From the introduction:
The 1787 Federal Convention drafted, and the ratifiers approved, the United States Constitution under the assumption that it would be applied using then-prevailing methods of documentary interpretation. Modern efforts to apply novel “interpretive theories”—including newly-crafted originalist theories—to the Constitution are unfaithful to the instrument. The Founders would have responded to different interpretive methods by wording the Constitution differently.
The then-prevailing method of documentary construction (other than for real estate conveyances) was to seek and apply the subjective “intent of the makers.” If convincing proof of subjective intent was not available, Founding-era lawyers resorted to what we call “original public meaning.”
In the context of the Constitution, the “intent of the makers” was the understanding of the ratifiers. Ascertaining the subjective understanding of large groups (such as the ratifiers) is not as difficult as some commentators believe. From their wide experience with both public and private law, leading Founders were familiar with the process. This essay employs illustrations to demonstrate the point. The essay further explains the kinds of evidence that are more and less probative of the ratifiers’ understanding. …
A very interesting methodological exploration. I'm not sure I agree with all of it, but I agree with much of it, even though it casts itself as something of a counterpoint to an original public meaning approach. That may suggest (as I tend to believe) that originalism is less methodologically fragmented than may appear to outsiders: there lots of originalist methodologies with competing names and emphases, but there are very substantial overlaps.
Posted at 6:17 AM