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The Misconceived Assumption About Constitutional Assumptions, Randy E. Barnett
The Misconceived Assumption About Constitutional Assumptions, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
Both originalists and nonoriginalists alike often assume that background assumptions widely held when the Constitution or its amendments were enacted are part of the original meaning of the text. Originalists sometimes appeal to these background assumptions to render the meaning of more abstract words or phrases more determinate; nonoriginalist point to odious or outmoded assumptions as proof that original meaning is objectionable and should be rejected.
In this paper, the author examines the proper role of background assumptions in constitutional interpretation when ascertaining the meaning of the terms, and in constitutional construction when applying this meaning to particular cases and …