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Founders' Hermeneutic: the Real Original Understanding of Original Intent

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Founders' Hermeneutic: the Real Original Understanding of Original Intent The Founders' Hermeneutic: The Real Original Understanding of Original Intent ROBERT G. NATELSON* This Article addresses whether the American Founders expected evidence of their own subjective views to guide future interpretation of the US. Constitution. The Article considers a range of evidence largely overlooked or misunderstood in earlierstudies, such as contemporaneous rules of legal interpretation, judicial use of legislative history, early American public debate, and pronouncements by state ratifying conventions. Based on this evidence, the Article concludes that the Founders were "original- understanding originalists." This means that they anticipated that constitutional interpretation would be guided by the subjective understanding of the ratifiers when such understanding was coherent and recoverableand, otherwise, by the Constitution'soriginal public meaning. * Professor of Law, The University of Montana. I am grateful to the following people: The administration and staff of the Bodleian Law Library and Dr. Norma Aubertin-Potter, Chief Librarian of the Codrington Library at All-Souls College, all at the University of Oxford, and to Dr. Vanessa Hayward, Keeper of the Middle Temple Library, London, and her staff, for opening their collections and their hospitality to me; Professor Kurt T. Lash, Loyola Law School, for his comments on an earlier draft; Professor Stacey Gordon, Phil Cousineau, and Bob Peck of the Jameson Law Library at The University of Montana; Charlotte Wilmerton, The University of Montana, for her secretarial assistance; Sarah Morath, The University of Montana School of Law Class of 2007, for research assistance; and-although he may be unaware of my debt to him-John Sexton, now President of New York University and then dean of the NYU School of Law, for bringing my attention to H. Jefferson Powell's work many years ago. This Article was written with the assistance of a grant from The University of Montana School of Law. My deep appreciation goes to Elizabeth J. Natelson, for her editing and support. All Latin-to-English translations are my own. 1240 OHIO STATE LA WJOURNAL [Vol. 68:1239 TABLE OF CONTENTS I. INTRODUCTION ..............................................................................................1240 II. ANGLO-AMERICAN LAW AND THE CONSTITUTION ........................................1246 III. "INTENT" IN THE ANGLO-AMERICAN INTERPRETIVE TRADITION ...................1249 IV. WAS "INTENT OF THE MAKERS" SUBJECTIVE OR OBJECTIVE? ....................... 1255 A. The Usual or Necessary Meaning of Words ...........................................1256 B. The Analogy Between the Constructionof Statutes and the Constructionof Wills .................................................................1258 C. The Broad Range of Evidence Used by Founding- Era Jurists to D educe Intent ..................................................................1259 D. Judges' and Lawyers' Use ofLegislative History ..................................1262 1. Examples of Use of Legislative History ..........................................1262 2. Why Modern Scholars Have Been Misled....................................... 1268 E. The Use of the "Rules of Construction"................................................ 1273 F. How the Courts Proceededin Equitable Construction Cases................ 1281 G. A Response: The Earl of Oxford's Case .................................................1286 V. APPLYING "INTENT OF THE MAKERS" TO THE CONSTITUTION .......................1288 A. Who Were the Constitution's "Makers"? ..............................................1288 B. Establishinga Terminus Post Quem for the Ratification Era................ 1289 C. Interpretive Methods Leading up to the Ratifying Conventions .............1290 D. During the Ratifying Conventions.......................................................... 1293 E. Debates in the First Congress................................................................ 1297 1. Introduction ....................................................................................1297 2. The Bill of Rights D ebate................................................................ 1298 3. The CongressionalDebate over Removal of Federal Officers ..............................................................................1300 4. The CongressionalDebate over the FirstNational Bank ...............1303 V I. C ON CLUSION ..................................................................................................1305 I. INTRODUCTION This Article re-examines the controversial question of whether the American Founders' believed their own subjective understandings should guide future interpretation of the United States Constitution,2 or whether they IAs used in this Article, the term "Founders" includes delegates to the federal constitutional convention, leading figures in the ratification conventions, and others who contributed significantly to the public debate, including leading Anti-Federalists. The term "founding generation" is employed to describe the participating public generally. 2 BibliographicalNote: This footnote collects alphabetically the secondary sources cited more than once in this Article, including most of the prior treatments of this subject. The sources and short form citations used are as follows: ANNALS OF CONGRESS (Joseph Gales, Sr. ed., 1798-1824), available at http://memory.loc.gov/ammem/amlaw/lwac.html (last visited Sept. 17, 2007) 2007] FOUNDERS' HERMENEUTIC [hereinafter ANNALS]. " Hans W. Baade, "Original Intent" in Historical Perspective: Some Critical Glosses, 69 TEX. L. REV. 1001 (1991) [hereinafter Baade, Original Intent]. " Hans W. Baade, "Original Intention": Raoul Berger's Fake Antique, 70 N.C. L. REV. 1523 (1992) [hereinafter Baade, Fake Antique]. " MATTHEW BACON, A NEW ABRIDGMENT OF THE LAW (5th ed. 1786). " Raoul Berger, "Original Intention " in Historical Perspective, 54 GEO. WASH. L. REV. 296 (1986). * THOMAS BLOUNT, A LAW-DICTIONARY AND GLOSSARY (3d ed. 1717) [hereinafter BLOUNT, DICTIONARY]. * MAURICE C. BOND, GUIDE To THE RECORDS OF PARLIAMENT (1971). " DANIEL J. BOORSTEIN, THE AMERICANS: THE COLONIAL EXPERIENCE (1958). " THE HISTORY AND PROCEEDINGS OF THE HOUSE OF COMMONS FROM THE RESTORATION TO THE PRESENT TIME (Richard Chandler ed., 1742-44) (fourteen volumes). " LEGISLATIVE AND DOCUMENTARY HISTORY OF THE BANK OF THE UNITED STATES (M. St. Clair Clarke & D.A. Hall eds., Augustus M. Kelley reprint 1967) (1832) [hereinafter BANK HISTORY]. * EDWARD COKE, INSTITUTES OF THE LAWS OF ENGLAND (1628-44) [hereinafter COKE, INSTITUTES]. " JOHN COWELL [or "Cowel"], A LAW DICTIONARY OR THE INTERPRETER (1777) [hereinafter COWELL, DICTIONARY]. " TIMOTHY CUNNINGHAM, A NEW AND COMPLETE LAW DICTIONARY, OR, GENERAL ABRIDGMENT OF THE LAW (3d ed. 1783) [hereinafter CUNNINGHAM, DICTIONARY]. " THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION (John P. Kaminski & Gaspare J. Saladino eds., 1976-2006) (multiple volumes projected; not all completed) [hereinafter DOCUMENTARY HISTORY]. * JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (5 vols; 1941 ed. inserted in 2 vols.) (2d ed. 1836) [hereinafter ELLIOT'S DEBATES]. " THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (Max Farrand ed., 1937) (four volumes) [hereinafter Farrand]. " ALEXANDER HAMILTON, JAMES MADISON & JOHN JAY, THE FEDERALIST (George W. Carey & James McClellan eds., 2001) [hereinafter THE FEDERALIST]. * CHRISTOPHER HATIrON, A TREATISE CONCERNING STATUTES, OR ACTS OF PARLIAMENT: AND THE EXPOSITION THEREOF (1677). " GILES JACOB, A NEW LAW-DICTIONARY (8th ed. 1762) [hereinafter JACOB, DICTIONARY]. " SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (1755) (no pagination) [hereinafter JOHNSON, DICTIONARY]. " LORD KAMES (HENRY HOME), PRINCIPLES OF EQUITY (1778) (two volumes). " Richard S. Kay, Adherence to Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Nw. U. L. REv. 226 (1988). " LEONARD W. LEVY, ORIGINAL INTENT AND THE FRAMERS' CONSTrrION (1988). " JOHN LILLY, THE PRACTICAL REGISTER: OR A GENERAL ABRIDGMENT OF THE LAW (2d ed. 1745) (two volumes). " Charles A. Lofgren, The Original Understanding of Original Intent?, 5 CONST. COMMENT. 77 (1988). " Robert G. Natelson, The Agency Law Origins of the Necessary and Proper 1242 OHIO STATE LAW JOURNAL [Vol. 68:1239 thought constitutional construction should be guided only by objective public meaning or some other hermeneutic standard. This is a historical question, and in this Article, I treat it as such. I do not argue that one standard of interpretation is better or worse than another. I explore the Founders' views on the matter and report the results. Previous commentary on the issue has been fairly extensive.3 Interest seems to have been encouraged by the issue's implications for modem constitutional interpretation. For example, Professor H. Jefferson Powell, whose influential article concluded that the Founders would have thought subjective intent irrelevant, 4 went beyond the historical material to argue that his conclusion impaired the legitimacy of traditional originalism. 5 Not Clause, 55 CASE W. RES. L. REV. 243 (2004) [hereinafter Natelson, Necessary and Proper]. " Robert G. Natelson, The General Welfare Clause and the Public Trust, 52 U. KAN. L. REV. 1 (2003) [hereinafter Natelson, General Welfare]. " Robert G. Natelson, The OriginalMeaning of the Establishment Clause, 14 WM. & MARY BILL RTs. J. 73 (2005) [hereinafter Natelson, Establishment
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