A great many problems and puzzles arise when we attempt to understand the meanings of various texts – legal, literary, philosophical, scriptural, and otherwise. My concern here will be with the interpretation of legal texts, and more particularly, of constitutions. And because the constitution with which I am most familiar is the Constitution of the United States, I propose to focus on problems that arise in the course of interpreting that particular document. My hope (and expectation) is that the lessons to be learned thereby may be broader still, and generalizable to a whole host of other cases of constitutional interpretation far beyond the borders of the United States.
Before I begin, there are two caveats. First, I do not believe that the search for “original intent” is inherently misguided or impossible in principle. Intellectual historians regularly recover and recount authorial intentions. Such recoveries are an integral part of the practice of the “new historians” of the so-called “Cambridge school.” Their oft-stated aim is to recover authors’ intentions and the “historical identity” of this or that text – the original intent, as it were, of the author and the work in question.^[1] Such a strategy can work well, and sometimes brilliantly, for historians of legal and political thought. But I shall argue that the very strategy that can work so well for historians would be unworkable and well-nigh disastrous for jurists seeking to interpret the meaning of the U.S. Constitution (and, by implication, other basic legal instruments). There are, I believe, good reasons for rejecting an originalist strategy of legal interpretation. For, as I shall suggest, the hermeneutical tasks facing judges and jurists differs markedly and profoundly from those encountered by historians of legal and political thought.
Second, originalism is not a single doctrine but a family of doctrines sharing a common core assumption, viz., that judges and other interpreters must return to and regard as the authoritative original source, whether that source be construed as author, authorial intent, text, or more broadly, the moral, historical, legal and political context in which the author worked and/or the text was composed. I shall be dealing mainly with the “original intent” version of originalism.^[2]
My aim here is accordingly to take a fresh look at a current and recurring hermeneutical controversy centering around a set of questions about what the Constitution “means” and how it should be interpreted. Is the meaning of this particular (or perhaps indeed any) text extensionally equivalent to a restatement of its authors’ beliefs and intentions? Or does the meaning of this (or any) text change over time and vary with the changing perspectives and interests of its interpreters? Various versions of the doctrine of originalism answer the first question affirmatively and the second negatively. Opponents of originalism tend to answer the first negatively and the second affirmatively.
However interesting these questions (and answers) are to scholars, they are not, needless to say, purely academic. Such questions constitute what I have elsewhere called “deadly hermeneutics” – deadly inasmuch as how they are answered has consequences for peoples’ lives, liberty, and well being.^[3] I want here to take a critical second look at one way of addressing and answering these questions. That perspective – once called strict constructionism and, more recently, “originalism” or “original intent” – holds that the meaning of a text or utterance, generally speaking, is whatever its author initially intended (or could conceivably have intended) it to mean. In the case of the U.S. Constitution, the task of the interpreter or “interpretive community” – consisting not only of legal scholars, lawyers, judges and Supreme Court Justices, but ultimately of ordinary citizens as well – is to discover what the Founders originally meant by this or that word, article, phrase or passage. Much has been said in defense and in criticism of this doctrine.^[4] My aim here, however, is not to retread these well travelled roads but to suggest an altogether different route.
In what follows I shall try to be critical of originalism without, however, trading in the caricatures that mar much of the decidedly polemical debate between originalists and their critics. Like ethnic, racial and sexual stereotypes, judicial stereotypes should be avoided assiduously. I know of no originalist, for example, who fits the stereotype of the flat-footed literalist whose principles would lead to the conclusion that the U.S. Air Force is unconstitutional because it – unlike the army, navy, and state militias – is not specifically mentioned or provided for in the American Constitution. Nor do I know any nonoriginalist who holds that “anything goes” and that judges can legitimately usurp the role of legislators by “making” law on whim or as they see fit. Both are caricatures, and neither furthers the cause of criticism.
I propose to criticize originalism by advancing and defending two claims. The first, which is straightforward and noncontroversial, is that discovering an author’s beliefs and intentions requires that one recover or reconstruct the language or idiom in which those beliefs and intentions were first framed. Although fraught with difficulties, this task can be, and has been, performed by conceptual historians.^[5] My second and more controversial claim is that there are compelling reasons why judges and Supreme Court justices – or ordinary citizens – are not now, and should not become, conceptual historians bent on reconstructing the world of words within which the Framers expressed their beliefs and articulated their intentions.
My argument proceeds in the following way. I begin by sketching a slightly simplified picture of the kind of un- or half-articulated beliefs that underlie and give point and meaning to human action and intention. I then attempt to connect this crude picture with current concerns about conceptual change and commensurability in anthropology and elsewhere. These concerns, I argue, also have their counterpart in constitutional interpretation. The background beliefs and the discursive or linguistic conventions within which the American Founders framed their intentions are in many respects remarkably different from our own. To recover and reinstate their intentions would perforce require that judges not only recover, but that they (and we) accept as valid and legitimate the outdated or even discredited theoretical discourse of an earlier epoch. This, however, is a retrograde move that we cannot rationally make. Next, I suggest that while one can of course sometimes discern the intentions of any particular individual Founder, one commits the “single-author fallacy” if one attempts to impute a unique or univocal intention to the Founders as a group. Finally, I conclude by suggesting that the most persuasive critic of originalism is none other than the Father of the Constitution himself.

I.

The intentions informing our actions are necessarily framed against the backdrop afforded by our understanding of the world and how it works. This understanding not only includes beliefs about causal connections (if you wish to bring about B, you must first do A, because A causes B), but also certain assumptions about human nature – that is, about what kinds of creatures human beings are, what moves or motivates them, what ends they seek, and so on. These causal beliefs and these assumptions about human nature are in their turn part of a larger picture of the world and our place in it. As Isaiah Berlin observes:

“Men’s [sic] beliefs in the sphere of conduct are part of their conceptions of themselves and others as human beings; and this conception in its turn, whether conscious or not, is intrinsic to their picture of the world. This picture may be complete and coherent, or shadowy or confused, but almost always... it can be shown to be dominated by one or more models or paradigms: mechanistic, organic, aesthetic, logical, mystical, shaped by the strongest influence of the day – religious, scientific, metaphysical or artistic. This model or paradigm determines the content as well as the form of beliefs and behavior.”^[6]

If one is to correctly characterize an agent’s action – or an author’s text (which, after all, is an action performed with words) – one must be able to identify the world picture which informs the language within which his or her intentions are (or were) framed in the first place. One must, in other words, see them as somehow fitting in with a whole network of background beliefs about the world and how it works.
In the case of contemporaries with whom we share a culture and a common language this ordinarily poses little or no problem. But when observer and subject share neither a culture nor a common language the so called commensurability problem becomes both obvious and acute. The epistemic perils facing anthropologists are notorious, and the opportunities for mistranslation and other forms of cross-cultural miscommunication are legion.^[7] But such problems are by no means unique to anthropology and allied disciplines. I want to suggest that the art of constitutional interpretation is fraught with dangers and difficulties at least as great, and possibly as intractable, as those facing any anthropologist.
Now this might seem absurd on its face. For (it might be objected) twenty-first century Americans do, after all, share with the Founders a continuous culture and a common language. We are able to recover and understand their intentions because they are, or were, framed in the very language that I and my fellow Americans still speak. It is of course true that we, like the Founders, are speakers of English. But it is no less true that this language has changed in several crucial respects. First, and most obviously, many of the “same” words have quite different meanings for us than they did for the Founders. Garry Wills gives the following example:

“Your argument is obnoxious, but it will be liquidated once its specious character is discovered.” That sentence would not be considered friendly if spoken today. But its terms were not hostile in the eighteenth century. We need to translate: “Your argument, though exposed to malice, will become clear when its attractive distinction is revealed.”

“Minor misunderstandings,” Wills continues, “can, cumulatively, become major if we forget the many small differences in usage between [the Founders’] time and our own.”^[8]
Of course this problem, important as it is, is readily remediable. But there is a second and perhaps more profound sense in which our language differs from the language in which the Founders framed their intentions. What we call “our language” (or theirs, for that matter) is not all of a piece. It is instead compounded out of those specialized sub languages or idioms that I have elsewhere termed discourses.^[9] Such discourses would today include, though by no means be restricted to, those that are conventionally classified as legal, literary, political, ethical, educational, scientific, economic, artistic, and the like. Such sub languages or discourses are not, of course, hermetically sealed, much less mutually exclusive. Each tends at times to transgress upon the other. Such transgressions are, indeed, one of the main sources of conceptual change and innovation.
The language of the Founders, like ours, was compounded out of a number of different discourses. But the discourses out of which it was compounded are in many respects quite different from those with which we are familiar. If we are to understand the meaning of their actions – in this case those linguistic actions or speech acts that make up the arguments out of which and on the basis of which the Constitution was constituted – then we must know what their beliefs and intentions were. But these we cannot know without knowing something about the language in which those beliefs were expressed and intentions framed and made meaningful and intelligible in the first place. The conceptual and moral universe that the Founders inhabited is of course connected with – and is indeed partially constitutive of – the one that we now inhabit; but it does not coincide with our world at all possible points. To borrow a phrase from Gadamer, their historically specific “prejudices” (i.e., prejudgments or standpoints: Vorurteile) are not wholly unrelated to ours, but neither are they entirely equivalent. Originalist claims to the contrary notwithstanding, the task of legal and constitutional interpretation is not to suspend or forego our own prejudices in favor of theirs, but to recognize, and if possible reconcile, our different understandings of how political society works and ought to be structured and governed.^[10]

II.

The American Founders’ views of politics and human nature provided the backdrop against which “power” was conceived (and checked), “liberty” understood (and promoted), and “ambition” and “faction” feared (and countered). It was within this theoretical horizon or discourse that they framed their intentions and couched their arguments in defense of the newly drafted constitution. That much, at least, is part of a familiar story. But the story is incomplete without a more precise and detailed account of the connection between a particular kind of discourse and the intentions capable of being formulated within it. What was the Founders’ discourse, and what intentions did it make possible and intelligible? Like many apparently simple questions, this one admits of no easy answer. Part of the difficulty is due to their having access to a number of discourses, not all of which were of a piece, much less mutually compatible. For the sake of simplicity I shall focus only upon two, the first being the political-theoretical discourse of republicanism, the second the scientific discourse of “faculty psychology”.
Beginning in the second half of the twentieth century historians rediscovered the remains (or perhaps one should say the ruins) of an “Atlantic republican tradition” that stretched from Aristotle and Polybius up through Machiavelli and Harrington to Montesquieu and the American Founding Fathers.^[11] Very roughly, republicanism was the theory that viewed the bios politikos, the life of active citizenship, as the highest human calling and which, as a corollary, viewed the self interested pursuit of private gain as an “idiotic”(from the Greek idion) way of life unfit for free human beings. Not surprisingly, then, the concepts constitutive of the discourse of republicanism – “liberty,” “virtue,” and “corruption” among them – had different meanings for (say) Machiavelli or even for Montesquieu than they do for us, immersed as most of us are in the discourse of liberal individualism. Thus “liberty,” for example, referred to the free citizen’s ability and opportunity to take an active part in political affairs; “virtue” to that set of qualities or characteristics that make one a good and selfless citizen who puts this liberty to good public use; and “corruption” to the inability or unwillingness to use – and, if necessary, to take up arms to defend – one’s liberty, choosing instead to pursue private gain and to lead a life of luxury and ease.^[12] Thus the sort of privacy favored in modern liberal societies was seen by republicans not only as a form of corruption but of privation or loss of liberty.
The concepts constitutive of classical and Renaissance republicanism form no part of the discourse of such latter day capital-R Republicans as Ronald Reagan or George W. Bush, of course; but neither are the rest of us on intimate terms with that tradition. We live, as Alasdair MacIntyre reminds us, “after virtue”; our ethics are not the ethics of virtue nor are our politics the politics of virtu.^[13] In the late 1780s “Brutus” and “Publius” and other latter day mock Romans spoke of virtue, corruption, and liberty in ways which we today can comprehend only with some difficulty, if at all. That this may be our loss, I do not deny; but what cannot be denied, I think, is that this discourse has been largely lost to us, and is unlikely to be recovered, rehabilitated, and used once again as the common coin of communication (the best efforts of modern “communitarian” theorists to the contrary notwithstanding). Yet it is upon our capacity to carry out just this sort of recovery and rehabilitation that originalism rests. That doctrine, as we shall see shortly, would require a Canute-like attempt to turn back the tide of conceptual change, and would doubtless meet with just about as much success as King Canute’s effort.
The political and moral discourse of republicanism is not the only language lost to us; so too is at least one of the theoretical discourses employed by the Founders. Emphasizing “the importance of the intellectual conventions of an age in defining an author’s intentions,” Daniel Walker Howe has reconstructed one of the discourses in which the American Founders talked and thought about human nature. The authors of the Constitution and The Federalist, Howe reminds us, had ready recourse to the concepts comprising “faculty psychology.”^[14] Faculty psychology holds that human beings are endowed with certain species-specific powers or “faculties” which, taken together, constitute human nature. Human nature is therefore teleological, in that each faculty impels us toward certain sorts of ends. This teleological psychology comprises the theoretical model or background beliefs within which the Founders framed their intentions and argued their case.
To re-read the Constitution, the records of the Constitutional Convention, and The Federalist in the light cast by this recently recovered theoretical idiom is to better understand where the Founders stood and how they thought. But it is one thing to arrive at such historical understanding, and quite another to put it to present-day judicial use. To take the originalist position seriously enough to put it into (interpretive) practice would require that lawyers and judges accept that particular background theory as valid, or at any rate unproblematic, in arguing their cases and arriving at legal decisions. Were they to do so, however, they would be out of step with their contemporaries, including those whom we nowadays call psychologists. No psychologist now subscribes to the tenets of faculty psychology, as though Freud (and even B.F. Skinner) had never lived or written a word. We can of course recognize and appreciate that the Founders found this particular theory persuasive. But human knowledge has grown; too much has transpired to allow us to accept this theory as authoritative, still less true. To the extent that the Founders framed their intentions in the idiom of this theory, we can recover those intentions, but we cannot return to them and make them our own. Anyone attempting to do so would be in a position analogous to a modern sailor who steers his ship by relying on old navigational charts and maps drawn in the belief that the earth was flat.
To understand what the Founders intended to convey or communicate in the course of constitutional debates and during the subsequent debate over ratification requires that we recognize, as my students would say, “where they’re coming from.” It turns out that in the two aforementioned respects the Founders were coming from a place that no longer exists on modern maps of knowledge. To reconstruct earlier cartographic theories, and the maps drawn with their aid, is often illuminating; but we would not want to put those theories and maps to present day navigational use. Yet that is precisely what originalists propose that we do, or at any rate aspire to do.
My contention is not that judges and the rest of us cannot adopt an originalist strategy; far from it. For certain purposes – to arrive at a better understanding of the Founders’ historical milieu, for example – originalism functions as an admirable (if not readily attainable) regulative ideal. Nor am I claiming that judges can, or should, interpret the Constitution in any way they wish. No one, surely, wants judges to be able to creatively pull un- or extra-constitutional rabbits out of their own hats. My contention is, rather, that originalism in its several versions is defective, unwieldy, and probably unworkable as a guide for arriving at judicial decisions. Originalism is not so much impossible in principle as it is misguided in its aims and unworkable in practice. Since in our present political climate this is a contentious claim, I want to restate and illustrate it by placing it in a more distant and, I hope, somewhat less contentious historical context.

III.

Calls for a return to authors’ original intentions are issued periodically by fundamentalists in different domains, whether literary, legal, religious, or otherwise. And such a call appears at first glance to provide an attractively simple solution to an otherwise very complex problem: How do we moderns understand a text produced by predecessors who did not fully share our world, our language, our beliefs and presuppositions? Answer: we simply read the text as a statement of (actual or at any rate conceivable) authorial intent, which in turn fixes the meaning of the text then, now, and forever after. In fact, however, the purported answer turns out to be extraordinarily complicated, not only for the logical and conceptual reasons to which I have alluded already, but for several eminently practical reasons as well. The two turn out, moreover, to be quite closely connected.
By way of illustration we can look, not at the Bible or the Constitution or the Qur’an – texts around which passionate and protracted hermeneutical controversies continue to swirl – but at the distant mirror provided by the civil jurisprudence of late medieval and early modern Europe.^[15] The story, in a nutshell, is this: Roman law, as codified by Justinian in the sixth century and subsequently glossed by Bolognese jurists in the twelfth, was synthesized in Accursius’s Great Gloss of the mid-thirteenth century. The work of Accursius and other Glossators was necessary because, without their commentaries, clarifications, and cross references, the text of the Justinian Code was well nigh incomprehensible. Accordingly, Accursius’s Gloss was widely regarded as enjoying equal authority with the Code. In the fourteenth century, the Commentators who came to be known as Bartolists (after their most renowned representative, Bartolus of Saxoferrato) devised cumbersome but workable techniques for interpreting and applying Roman law to the judicial problems being addressed in late-medieval European society. They did this not only by looking at the letter of the law, but by teasing out premises or principles believed to be latent in the law. Out of the archaic Code and accompanying Gloss they constructed an ius commune, a Common Law more attuned to the needs of their era.
By the fifteenth century, however, Renaissance grammarians challenged the Bartolists by claiming, with considerable justification, that newly refined philological techniques made it possible to rediscover and recover the original meaning of Roman law. Ancient texts could be restored to their original, and presumably authoritative, meaning. With the aid of this new broom, they claimed, much of the excess verbiage of “interpretation” or “commentary” could be swept away and the original meaning of the Roman Law reinstated.
Although this seemed at first sight to be eminently sensible, it was not long before the Neo-Bartolists countered by pointing out that the original discourse of the Roman lawgivers, and the intentions it made possible, presupposed beliefs, legal contexts and linguistic conventions remote and far removed from those of sixteenth-century Europe. To interpret the law in the light of an earlier lawgiver’s “original intent” would therefore mean removing the law from the contexts in which it did its unwieldy but invaluable work. Sundered from the language of the modern marketplace and contemporary morality, the law would cease to be “common,” becoming not only more unwieldy and less workable, but largely unintelligible to those to whose conduct it was supposed to apply. The law would, in other words, cease to reflect the beliefs, inform the intentions, and regulate the actions and activities of those who were not legal scholars and specialists. The Neo-Bartolists accordingly acknowledged that while the historical reconstruction or recovery of original meaning or initial intent had its place in judicial reasoning, jurists were not to attempt the impossible feat of recovering the past in order to return to it for the purpose of making judicial decisions.
There is in this sixteenth-century case, I think, a lesson to be learned by twenty-first century Americans – and a warning for those willing, ready, and even eager to eschew an intervening history of interpretation and commentary and return directly to the original intent of the Founders. The lesson is not that such a return is impossible either in principle or in practice. The difficulty is of a rather different sort. Even supposing that one can arrive at some approximation of the Founders’ intent or original meaning, what weight, if any, is it to be given? And this becomes especially important in light of the fact that the recovery of the Founders’ beliefs and intentions requires that one not only understand but presumably accept as authoritative the discourse(s) in which their intentions were framed in the first place. Of course conceptual historians have no difficulty in “accepting” such theoretical idioms; theirs is acceptance “for the sake of argument” (and for the sake of historical understanding: they wish, that is, to restore the contexts which render intelligible the beliefs, intentions, arguments, and actions of agents long dead). The arguments in which they engage are, however, largely – and non-pejoratively – academic.
Judges or Supreme Court Justices, by contrast, are faced with a very different – and distinctly nonacademic – task. Theirs is not the task of recovering and restoring the idioms and intentions of lawgivers long dead, but of rendering decisions that apply to law-benders and law-breakers now living – and of doing so, moreover, in terms that are more or less intelligible to those whose conduct is being judged. Of course this is, and remains, a regulative ideal to which reality all too rarely corresponds. No one could fail to recognize that there are exceptions, breakdowns and failures aplenty: many a criminal has gone to prison with only the vaguest understanding of the letter of the law under which was charged, tried, and sentenced. The larger point, however, is that the criminal’s contemporaries should be able to understand the law, even if the criminal might not. It is in the final analysis a question of criminal intent, not original intent, and of the intelligibility of the law to those whose conduct and/or conscience is being appealed to. An originalist jurisprudence is blind and deaf to considerations of either sort. And that is only one of its flaws.

IV.

A further flaw afflicting originalism is to be found in its treatment, not of texts in general, but of the Constitution in particular. Originalists who look to the intent of the framers propose to treat the Constitution as if it were the product of a single author. But in fact it is possible to give only the most minimal and abstract characterization of the (shared) intention(s) of the Founders: They intended the Constitution to be the binding legal basis of a system of government in which each branch would balance and check the others, and in which there was a division of powers between the federal government and the several states. Beyond that, agreement ends and intentions differ. As the record of the Constitutional Convention clearly shows, the articles, sections, clauses, sentences and even single words that comprise this text were originally the result of ofttimes contentious and even quarrelsome collaboration, and an almost endless series of compromises among its many authors.^[16] And, if the diaries, memoirs, and correspondence of individual Founders are any indication, few were fully satisfied with the final result.^[17]
To attempt to treat the Constitution as one would a text by a single author is to commit the single author fallacy – that is, the fallacy of simply assuming, without argument or evidence, that all the authors of a collectively drafted document agreed on all particulars and shared identical intentions. In the case of the American Constitution, that is demonstrably untrue.

V.

If my arguments against originalism are as yet unconvincing, let me turn, finally, to that last refuge of scholars and scoundrels, the Argument from Authority. My authority is none other than the Father of the Constitution himself, James Madison. I choose Madison simply because he, in his role as Founder, is one of those to whose beliefs and intentions originalists are duty bound to look for advice and guidance. Ironically, however, Madison sides with those who hold that the reader or interpreter must have some say in determining what a text “means.” And surely originalism runs into real problems when an author-Founder intends that his words not be interpreted originalistically! Indeed, Madison, not unlike modern “reader response” or “reception” theorists, holds that texts are by their very nature essentially incomplete: even though a particular text has an author(s), it nevertheless needs a reader(s) or interpreter(s) to round it out and give it its full meaning.^[18]
In Federalist 37 Madison remarks that “All new laws, though penned with the greatest technical skill, and passed on the fullest and more mature deliberation” – as the document drafted in Philadelphia surely was – “are considered as more or less obscure and equivocal, until their meaning be liquidated [i.e., clarified] and ascertained by a series of particular discussions and adjudications.”^[19] Madison then goes on to enumerate three reasons for subscribing to this reception theory account of constitutional meaning. The first has to do with “the obscurity arising from [the] objects” of constitutional deliberation. The more complex the object, the greater the possibility of mistake or misunderstanding. The second has to do with “the imperfection of the human faculties.” The powers of human reason and understanding are by nature imperfect, occasionally defective, and invariably limited and must therefore be checked or compensated for. Important as they are, however, these two reasons for a “reception theory” approach get short shrift in comparison to the third.
Madison’s third and weightiest reason has to do with the nature of language itself:

“[T]he medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity therefore requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriated to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence, it must happen, that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, accordingly to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.”^[20]

Thus Madison maintains that the medium through which human beings communicate is not contingently but necessarily a “cloudy” one. Perfect clarity is not only impossible for human beings using human language; it would be impossible even for God, were He to stoop to talk to us in any human tongue.
But of course if God cannot make His meaning perfectly clear, it follows that even the most god like human legislator cannot frame and communicate his intentions with perfect precision and clarity. Not only can he not do it, says Madison, he cannot even hope to do it, given the nature of human language itself. The opacity of language is not, Madison insists, a failure or shortcoming of any particular language; it is, rather, an ineliminable feature of all language and hence, by implication, of all authors and speakers and therefore of all utterances and texts.
Madison’s reflections on language and meaning are deeply damaging to the doctrine of originalism. For that doctrine assumes that language is (or is at any rate capable of being) a transparent medium in which meanings and intentions can be framed and communicated in an unambiguous way. But this, according to Madison, is impossible. Language is not, and can never be, a completely transparent medium. Thus the doctrine of original intent rests upon what Madison might have termed the Fallacy of Perfect Clarity.
Originalist doctrine also depends upon another doubtful assumption, the one that Nietzsche called (in another context) the Dogma of Immaculate Perception, and that I call the Dogma of Immaculate Reception. That dogma holds that a reader or listener or interpreter is, or can (or should) be, an empty vessel – a veritable tabula rasa on which a speaker, author, or text imprints its message. But human communication, as Madison certainly acknowledged, is a two way street. It involves not only speakers and authors but also listeners and readers. The speaker or author is not simply the active agent and the listener or reader an inactive patient or passive receptacle. Both are and must be participants in any act of communication. As Madison puts it, the meaning of even the most carefully drafted law will be “more or less obscure and equivocal, until [its] meaning be liquidated and ascertained by a series of particular discussions and adjudications.” And these discussions and adjudications can, and arguably must, begin in and be mediated through the theoretical, moral, legal, political and/or scientific discourse of our day, and not simply that of the Founders alone.
As a strategy of juridical interpretation, then, “original intent” is afflicted with insurmountable difficulties. But it seems unlikely that originalism will be dislodged by argument, much less discarded altogether, as long as its rhetorical appeal continues to resonate with one or another political party or movement.