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98 Harv. L. Rev. 885 (1984-1985)
Issue 5

handle is hein.journals/hlr98 and id is 903 raw text is: VOLUME 98 MARCH 1985 NUMBER 5 HARVARD LAW REVIEW THE ORIGINAL UNDERSTANDING OF ORIGINAL INTENT H. Jefferson Powell* When interpreting the Constitution, judges and commentators often in- voke the original intent of the framers in support of their positions. Many claim that such an interpretive strategy is not only currently desirable, but indeed was the expectation of the Constitution's drafters and early inter- preters. In this Article, Professor Powell examines the historical validity of the claim that the framers of the Constitution expected future interpreters to seek the meaning of the document in the framers' intent. He first examines the various cultural traditions that influenced legal interpretation at the time of the Constitution's birth. Turning to the history of the Constitution's framing, ratification, and early interpretation, Professor Powell argues that although early constitutional discourse did contain references to original intention and the intent of the framers, the meaning of such terms was markedly different from their current usage. He concludes that modern resort to the intent of the framers can gain no support from the assertion that such was the framers' expectation, for the framers themselves did not believe such an interpretive strategy to be appropriate. I. INTRODUCTION The world must construe according to its wits. This Court must construe according to the law.' C ONTEMPORARY discussion of the theory and methodology of constitutional interpretation exhibits no general agreement on the proper role either of history in general, or of the history of the Con- stitution's framing and ratification in particular. A few scholars argue that the latter is essentially irrelevant to the task of establishing con- stitutional norms;2 a more common position is to recognize an obli- * Associate Professor of Law, University of Iowa. University of Wales, B.A., x975; Duke University, A.M., '977; Yale Divinity School, M. Div., 1979; Yale Law School, J.D., 1982. This Article was written while I was a research associate at Yale Law School; I appreciate the school's support. For their comments, criticisms, and encouragement, I am greatly indebted to Mary Dudziak, Owen Fiss, Burke Marshall, Jan Powell, and George Priest. I R. BOLT, A MAN FOR ALL SEASONS 152 (1962) (speech of Sir Thomas More at his trial). 2 See, e.g., Sandalow, Constitutional Interpretation, 79 MICH. L. REV. 1033 (i98i) (arguing that historical evidence of the framers' intent cannot constrain modern interpretation). Michael Perry admits the theoretical legitimacy of judicial enforcement of the framers' intentions, but argues that in practice modern constitutional decisionmaking does not, and need not, depend

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