Original Intent

is a method of constitutional and legal interpretation that seeks to discern the original meaning of the words being construed as that meaning is revealed in the intentions of those who created the law or the constitutional provision in question. In the American tradition, original intent is often referred to as the “framers’ intentions,” “original meaning,” or “original understanding.”

(p. 712) To those who advocate this approach, the search for original intention in interpretation is the very essence of the idea of the rule of law; it is the line that separates the act of judging from the act of legislating. Judges are obligated to determine what the lawgiver intended by the words chosen—no more, no less.

The idea of judges being bound to original intent as they seek to say what the law means is not an American innovation. Indeed, recourse to original intent as the guide to judging has ancient roots. One sees evidence of it as early as Aristotle’s writings on law and it is present among the earliest legal writings in England that sought to give definition to the unwritten *common law and the unwritten constitution.

Yet the greatest controversies over original intent have come to surround the power of the Supreme Court under the written Constitution of the United States. In deciding the constitutional cases that come before it, should the Court be bound to original intent or should it engage in an effort to keep the Constitution in tune with the times? Was original intent, in fact, the “original intent” of the framers themselves?

Critics of the original intent doctrine argue emphatically that it was not. Further, they hold that with respect to many of the Constitution’s most important commands, written in what they consider to be majestic but open-ended language, the search for literal meaning is both impossible and undesirable.

Those who defend original intent believe that unless judges are bound to original intent, they are freed from the restraint of the law and become, in effect, lawmakers themselves. In this view, it is the obligation of the judges to keep the times in tune with the Constitution, not to keep the Constitution in tune with the times.

See also constitutional interpretation; interpretivism and noninterpretivism.

Gary L. McDowell