The Misunderstood Relationship between Originalism and Popular Sovereignty

Since The Tempting of America was published, (1) many originalists, seeking to justify their preference for adhering to the original meaning of the Constitution, have taken up the banner of popular sovereignty. (2) The Constitution, we are told, was ratified by We the People. (3) According to many, the popular ratification of the Constitution and its many amendments grants the Constitution an enduring legitimacy. (4) Because popular sovereignty is said to be the principal basis of the Constitution's legitimacy, one ought to follow the meaning ascribed to the Constitution by They the People--namely, those who ratified the Constitution and its amendments over the course of 200 years. In other words, if the American people gave the Constitution a continuing legitimacy, they also should be the ones to give it an enduring (and somewhat stable) meaning. Recently, Professor Kurt Lash asserted that popular sovereignty is the common and most influential justification for originalism. (5) Whether or not Professor Lash is correct, his assertion seems plausible. This Essay does not take issue with those who celebrate popular sovereignty. Nor does it deny that the Constitution's legitimacy arises by virtue of numerous acts of ratification, most of which took place several generations ago. Those are debates for another day. Instead, this Essay contests the interpretive assertion that proponents of popular sovereignty often make: that originalism is a legitimate means of making sense of the Constitution merely or primarily because of the manner in which the Constitution was ratified and amended. (6) This position unduly narrows the strength and appeal of originalism, which, properly understood, has nothing to do with how the legal document in question came into being. Legal documents generally ought to be understood through the originalist lens, whether those documents are the products of petty dictators or the united voice of the people. Indeed, any text or utterance, legal or not, should be understood through the originalist lens. Originalists interested in discerning the meaning of a legal text usually ask some variant of the question: What did these provisions mean when they were enacted? Some originalists look to the subjective meaning: What did the actual lawmakers mean by the text that they purported to make law? Other originalists try to identify a semantic meaning, which is a sort of generic public meaning that might sometimes be distinct from what the actual lawmakers intended: What would this language mean to most ordinary people at the time? (7) Originalists of all stripes eventually have to examine evidence that sheds light on their preferred version of original meaning. No one can properly say what a text written over two centuries ago meant at the time without examining far more than the text alone. Hence, originalists typically examine materials like Samuel Johnson's A Dictionary of the English Language, (8) debates from the time of the Constitution's framing and ratification, and post-ratification history (including material from Congresses, Presidents, and courts). (9) More resourceful originalists may examine letters from the era, newspaper articles, books, and any other available document to determine original meaning. (10) After all, common usage not only establishes a public, semantic meaning; it also provides evidence of legislative intent, for lawmakers often intend the common meaning of the words they use. But an obvious question arises once one examines something besides the text: How are we to make sense of these other sources that are being used to unearth a constitutional provision's original meaning? If one does not apply originalism to these documents but instead applies the theory of a living dictionary, a living letter, or a living Federalist Paper--the obvious counterparts to the living Constitution theory--then one will not really be discerning and recovering the Constitution's original meaning. …