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30 Whittier L. Rev. 695 (2008-2009)
Original Popular Understanding of the Fourteenth Amendment as Reflected in the Print Media of 1866-1868

handle is hein.journals/whitlr30 and id is 719 raw text is: ORIGINAL POPULAR UNDERSTANDING OF THE FOURTEENTH AMENDMENT AS REFLECTED IN THE PRINT MEDIA OF 1866-1868 DAVID T. HARDY* District of Columbia v. Heller,1 decided last term, has been described as the finest example of what is now called 'original public meaning' jurisprudence ever adopted by the Supreme Court.2 Original public meaning recognizes that a constitutional process differs radically from a legislative one; Congress enacts legislation, but only proposes constitutional amendments. The act which gives such an amendment binding force is its ratification by the people, via their local representatives, and it is the popular understanding, not the congressional intent, that is the key to its meaning.4 The Heller majority described its interpretative method as derived from an understanding that [t]he Constitution was written to be understood by the voters, and that its meaning was what would have J.D., University of Arizona 1975. The author would like to acknowledge the assistance of Arlene Balkansky of the Library of Congress Periodicals Division and of Sarah Gervase. 1. Dist. of Colom. v. Heller, 128 S. Ct. 2783 (2008). 2. Randy E. Barnett, News Flash: The Constitution Means What It Says, Wall St. J., A13, col. 4 [1 1] (June 27, 2008). 3. U.S. Const. art. I, §8; U.S. Const. art V. 4. See generally Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 125-32 (Princeton U. Press 2004); Randy E. Barnett, An Originalism for Nonoriginalists, 45 Loy. L. Rev. 611 (1999). Prof. Bamett seeks to reconcile original public meaning with textualism by analogy to the parol evidence rule: evidence of shared understanding is admissible to explain, but not to contradict, the written text. Id. at 631-34. 695

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