Constitutional Law | Public Law and Legal Theory
In recent years academic explanations of the originalist approach to constitutional interpretation have shifted the relevant inquiry from the subjective intent of the constitution-makers to the original public meaning of the Constitution's words. This article is a critical analysis of that development. In the actual course of adjudication by honest and competent judges either method should usually yield the same result. The reliance on public meaning, however, distracts the interpreter from the connection between the normative force of the Constitution and the founding events, a link that is essential to the legitimacy of constitutional judicial review. In the hands of less careful or less rigorous judges, moreover, abandoning intent as the central object of interpretation enlarges the range of plausible outcomes, threatening, as a practical matter, to subvert the clarity and stability of constitutional meaning that is central to the constitutionalist enterprise.
Kay, Richard, "Original Intention and Public Meaning in Constitutional Interpretation" (2009). Faculty Articles and Papers. 5.