98 Harv. L. Rev. 885 (1984-1985)
The Original Understanding of Original Intent

handle is hein.journals/hlr98 and id is 903 raw text is: VOLUME 98

MARCH 1985


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.
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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