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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.

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