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It is fitting that in the decade of the Bicentennial of the Constitution we have seen a renewal of debate over the meaning of the Constitution and what is required to remain true to it. An aspect of that debate has concerned constitutional interpretation and the role of “original intent”—or perhaps more broadly, “original context”—in any proper approach to the interpretive process. Unfortunately, the debate is frequently approached from virtually an either/or perspective, as though the intent of the Framers must either control all constitutional questions or be used as no more than window-dressing. While some advocates of original intent may overstate the extent to which historical evidence can aid constitutional construction, commitment to the principle that evidence extrinsic to the text can clarify meaning in ways that bind decision-makers does not entail seeing historical evidence as a grand key that removes most or all difficulties in determining the proper role for judicial review in a democratic society. It will hardly do to launch a broad-scale attack on the use of original context on the ground that claims as to its potential have been inflated.

Some seeming opponents of original intent have even been somewhat obscure as to whether they are opposed to seeing original intent as a panacea or are staking out the much stronger claim that, based on theoretical or practical objections, original intent can never raise binding obligations. Some have argued that the search for original intent does not provide answers to the difficult issues of contemporary application of constitutional provisions but have not clarified whether text read in context might resolve ambiguities or establish outside boundaries or, at least, some core applications of a particular provisions. Those most emphatic about the total poverty of original intent seem in general to be those committed to the views that (1) the search for binding intent is practically impossible or even theoretically incoherent so that only the text (if anything) binds us or that (2) the Framers lacked authority to bind us.

In this article, the author addresses the first of these claims.

Publication Citation

12 U. Dayton L. Rev. 275 (1986).