Original intent? Understanding? Meaning?

Rob Natelson, Tenth Amendment Center

12/11/2011

When the Constitution was written, there were specific legal rules about how one goes about interpreting constitutional phrases. Over the course of time, however, judges and commentators gradually forgot them.

In the 1980s, some argued that the courts should “return” to applying the original intent behind the Constitution—that is,what the framers (drafters) of the document intended when they wrote it.

In his 1990 best seller, The Tempting of America, Judge Robert Bork recognized that this view was not entirely correct:

Madison himself said that what mattered was the intention of the ratifying conventions. His notes of the discussions at Philadelphia are merely evidence of what informed public men at the time thought the words of the Constitution meant. Since many of them were also delegates to the various state ratifying conventions, their understanding informed the delegates in those conventions . . . what counts is what the public understood.

But this excerpt contains confusion of its own. What exactly is Judge Bork saying should prevail: “The intention of the ratifying conventions” or  “What informed public men at the time thought” or “What the public understood?”

And now… the rest of the story. …..