Constitutional Interpretation and History: New Originalism or Eclecticism?

The goal of originalism has always been purity. Originalists claim that their methods cleanse constitutional interpretation of politics, discretion, and indeterminacy. The key to attaining purity is history. Originalist methods supposedly discern in history a fixed constitutional meaning. Many originalists now claim that the most advanced method-the approach that reveals the purest constitutional meaning-is reasonable-person originalirm. These new originalists ask the following question: When the Constitution was adopted, how would a hypothetical reasonable person have understood the text? This Article examines historical evidence from the early decades of nationhood to achieve two goals. First, it demonstrates that reasonable-person originalism is incoherent at its historical core. As an interpretive method, originalism cannot achieve its stated goal: to identify fixed and objective constitutional meanings. Contrary to originalist claims, historical research uncovers contingencies and contexts. More specifically, the evidence shows that reasonable-person originalim is historically unjustified. Early in the nation's history, neither lawyers nor laypersons would have suggested that constitutional interpretation should be based on the views of a hypothetical reasonable person. Second, the Article demonstrates that the historical evidence instead supports an alternative conception ofconstitutional interpretation. In the early decades, numerous Americans-including framers, Supreme Court justices, and constitutional scholars-used an eclectic or pluralist approach to constitutional interpretation. Depending on the case, an eclectic interpreter considered a shifting variety offactors, including original meaning, framers' intentions, practical consequences, and judicial precedents. 283 * Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science, University of Wyoming. I thank Jack Balkin, Mark Tushnet, and Sam Kalen for their comments on earlier drafts and Joshua Eames for his research assistance.