Legal Commentary

It is something of a shibboleth among certain originalists that interpretation (defined as the search for original meaning) necessarily precedes evaluation. This claim is stated as a necessary conceptual truth about interpretation and, if in fact it is such a truth, nonoriginalist theories of interpretation are in real trouble. But the claim is not a necessary truth, for at least two reasons.

First, even if interpretation of a written text must begin by identifying some finite set of meanings associated with the text, there is no reason to think that this set must be limited to the text?s original meaning. For example, interpreters might begin by consulting the full range of meanings present-day Americans could plausibly understand its written words to bear, including but not limited to their original public meaning, the intended meaning of the framers and ratifiers, contemporary public meaning, and glosses attached to the text by history and tradition. This class is clearly broader than original public meaning, but it is hardly infinite. Social, legal, and linguistic conventions prevent the constitutional text from being plausibly interpreted to mean just anything at all.

Second, there is no reason that the identification of which meanings will count as associated with the text cannot depend in part on evaluative considerations?either at the wholesale level of choosing a theory of interpretation or the retail level of interpreting a particular textual provision. Interpretation is a purposive human practice. It is perfectly natural?indeed, virtually inevitable?that its contours will be shaped by the ends for which it is pursued.