Developing Original Meanings With Early Precedents

Originalism is so prominent in American constitutional culture,but it is precisely a new phenomenon.It is in 1970s-1980 s that modern originalism emerged,and originalists and nonoriginalists have been arguing about the proper approach to interpretation and the true loyalty to the Constitution since then.Interestingly,originalists and their critics always resorted to the “interpretive intention” of Founding Fathers to examine the historical validity of originalism,but they reached just the opposite conclusions.What is remarkable about Founding Fathers of the U.S.is that the revolution,the farming of the Constitution and the state-building were all projected onto a single group of people.To examine the “interpretive intention”,this article answers these three different but relevant questions: Were Founding Fathers originalists? What approach to interpretation did Founding Fathers indeed advocate and practice? And why? Therefore,this article revisits the scene where Founding Fathers as the first ones interpreted and applied the Constitution,observes their words and deeds in a long-time perspective,and explores the constitutional cause of changes and contradictions.Historical narrative and theoretical explanation are presented and analyzed simultaneously in the article.The changes of Founding Fathers' approach to interpretation from 1789 to 1830 is historically narrated.In 1789-1793,Founders embraced a robust method of interpretation—text,structure,history and purpose—with a pragmatic desire to establish the institutions of government and make them function.And in 1793-1801,they explored the original meanings of the Constitution in personal memories,historical documents and “the evils and defects for curing which the Constitution was called for and introduced”,desiring to clear Federalists' statism.However,from 1801 to 1830,Republicans' “originalism” altered during the administration of Thomas Jefferson,James Madison and James Monroe,and it was Madison,the Father of the Constitution and the last of the Founding Fathers,that eventually offered a distinctive approach to interpretation,developing original meanings with early precedents accumulating in the constitutional practice of over 40 years.Also,this article explains the constitutional cause of the above-mentioned changes.As the transfer of political power from Federalists to Republicans,and the division of Republicans afterwards,the theory and practice of Founding routine revolved from statism to states' rights to compromise between the two,and Founders' approach to interpretation changed accordingly from a robust and broad method to an original and strict method,and then to a distinctive one beyond the two.Specially,the phenomenon that original approach to interpretation could not prevail at first and altered at last was due to “Two Foundings”.The early interpreters who was framers in the first Founding continued “framing” the constitution after 1787,because their interpretation had dual attributes of applying and framing.In the second Founding,early interpreters not only were constrained by original meanings,but also developed original meanings with their early precedents.Founding Fathers of the U.S.were neither modern originalists,nor modern non-originalists.Their approach to constitutional interpretation experienced three stages of transformation as their political ideal evolved,and they eventually developed a distinctive approach to interpretation which can be called “early precedents completing and becoming part of original meanings” in the original institution-building and early partisan battle.That is,those precedents under the Constitution were subordinated to rather than being juxtaposed with original meanings,because early interpreters firstly sought original intention of Framers or original public meaning of the Constitution,and then developed them with precedents accumulating in the early application of the Constitution.In the course of “Two Foundings”,Founding Fathers' early interpretation and application of the Constitution was “a sort of continuing constitutional convention”.Therefore,original meanings of the Constitution were uncompleted and open to early interpreters.The course of Founding Fathers ordaining the constitution for themselves and their posterity was not confined to the framing and ratifying of the Constitution,but continued in the early constitutional history until 1830 s.The phenomenon that original approach to interpretation could not prevail at first and altered at last was due to that “two-part drama”.This article concludes constitutional changes determines approach to interpretation,particularly in the earliest days of application of the Constitution,that Founding Fathers' interpretation has dual attributes of applying and framing,and that constitutional interpretation is interpreters' specific practice in history and politics.Also,this article criticizes modern originalists for claiming that originalism not only is “correct” approach to constitutional interpretation but also was advocated and practiced by Founding Fathers.Rather,modern originalism is based on political and cultural psychology of Americans.