Interpreting the Constitution

A lot of people tell us you "just need to read the Constitution" to understand its original, legal meaning. And nothing more.

But like most things about the #Constitution - a lot of people are totally wrong.https://t.co/zQlWavL1tj

— TenthAmendmentCenter (@TenthAmendment) July 8, 2020

https://www.youtube.com/watch?v=BR22GpGEjf4

Jordan L. Perkins:

In some of my earlier academic writings, I attempted to lay out how this three-stage translation strikes me as in need of a great deal of explication, as there is an especially huge conceptual gap in how (2) becomes (3). But that is not my present point. My present point is that (2) itself seems to be a radically incomplete understanding of what ‘this Constitution’ means, even before we attempt to get to (3). This is because the words which were subject to negotiation in the 1787 Philadelphia Convention and then debate on the merits during the ratification process were interpreted in light of a specific intellectual tradition, that of the Anglo-American common law and constitution. ‘This Constitution’ makes sense only in light of that tradition, as interpreted by not only the Framers themselves (narrowly understood), but everyone directly involved in the ratification process. Constitutional texts are, as I would put it, enveloped within a shroud of implicature—they mean not only what they actually say, but also what they can be fairly understood to mean within the context of the social, economic, political, and legal tradition of the community to which they are addressed.

This is to say that ‘this Constitution’ cannot be merely the words on the page and/or what is specifically denoted by them. It must be something broader than this. The question is how far we must expand our net to capture the entirety of a plausible answer and if originalism, as a legal positivistic doctrine, can fully contain the answer which emerges. Again, I think not.

The strongest form of originalism for this debate, I think, is the original public meaning originalism which is largely dominant amongst contemporary adherents of the originalist doctrine. It holds that the Constitution (or any equivalent text) means, objectively, for all time, what it would have been understood to have meant by the community of speakers to which it was addressed. In other words, the Constitution means, basically, what the people who were engaged in the ratification debates thought it meant at the time.

Now, under this understanding of originalism, there’s a way of thinking that a legal positivistic doctrine might encompass the entire shroud of implicature (as I just put it) which imbues the constitutional text with its meaning. This is presumably because there is a fact of the matter as to what the political, legal, moral, and social conventions which provided the interpretive context in which the Constitution was initially understood, and these facts can presumably be unearthed, ideally through the law-office history which serves as the originalist jurisprudence's primary research tool.

and

Two things should here be noted. One is that we’ve drastically expanded the realm of meaning for ‘this Constitution’ to something which can be recovered, for the most part, through a within-the-four-corners interpretation of the text to one which requires a Quentin Skinner-esque full contextualization of the constitutional text within its complete intellectual habitat. To read the Constitution in this way properly would require fully getting inside the heads of those who wrote—reading what they read, understanding as they understood, thinking what they thought. As a conceptual matter, we might have identified a way originalism could meet the Vermeulean challenge. As a practical matter, it would be almost insane for anyone not experienced as a Cambridge School historian to try.

Or maybe a people would need a tradition with which they understood and interpreted the Constitution, and passed this tradition on to their descendants so that it would be understood and interpreted properly by them as well.
But if too many people are required to spread the tradition properly, is there any reasonable guarantee that the tradition will be kept?

If the meaning of a text could be lost so easily (and indeed even within the first generation appeals to the text alone could not suffice to prevent abuses), then maybe 1. many more things should have been explicitly written out by the ratifying conventions as addenda or the like, to be approved by all, or 2. the project of having a written constitution for a federal system should have been reconsidered. But those who ratified the Constitution were also hung up on their assumption that states were normative polities, so we should not expect them to have that much wisdom.

If the tradition no longer exists by which one can properly interpret the document, or there is no longer a shared consensus on its meaning, then is it still valid and binding as an agreement? If one cannot come to an agreement, is the compact automatically void, or does not still need to go through the motion of repealing it and replacing it with a different legal state of affairs?