What is Original Understanding?

Consider Professor Paulsen’s “Enterprise of Constitutional Interpretation”(see 114 Yale L.J. at 2056-2057):

My un-grand but radical position (within the small world of academic constitutional theoreticians) is simply this: The enterprise of constitutional interpretation – of discerning the document’s meaning – consists of giving to the Constitution’s words and phrases the meaning they would have had, in context, to informed readers of the language at the time of their adoption as law, within the relevant political community. Contrary to Rubenfeld’s assumption, and that of many other academic theorists, this seems to be the interpretive method prescribed by the Constitution itself.  The straightforward internal textual argument for original-meaning textualism is that the Constitution is a written document; that it specifies “this Constitution” as the thing that is to be considered supreme law; that the default rule for textual interpretation was, at the time of the Constitution’s adoption, the natural and original linguistic meaning of the words of the text; and that any argument for anachronistic interpretations of the text – that is, for substituting a personally idiosyncratic, nonstandard, or time-changed meaning in preference to the one that would have been understood at the time, and in the context, in which the text was adopted – ends up substituting some other words for the words chosen in “this Constitution.”  In short, the Constitution is written law, and the meaning of a written legal instrument is the original meaning of its words, not a different meaning substituted by someone else.

The enterprise of constitutional adjudication consists of applying the original linguistic meaning of the document to lawsuits in which a question of constitutional meaning is properly presented.  This requires another step: discerning second-order rules about what to do when the Constitution supplies a rule of law that applies to the case at hand; what to do when it does not; and what to do when the answer is unclear.  But it is not too hard to come up with such rules.  Simply put: If the meaning of the words of the Constitution supplies a sufficiently determinate legal rule or standard applicable to the case at hand, that rule or standard must prevail over a contrary rule supplied by some other competing source of law (typically a state or federal statute, or an executive branch or agency action).  That is because of the supremacy of the Constitution over other law.  Thus, if the Constitution supplies a rule, that rule prevails.  But if the meaning of the Constitution’s language fails to provide such a rule or standard – if it is actually indeterminate (or under-determinate) as to the specific question at hand – then a court has no basis for displacing the rule supplied by some other relevant source of law applicable to the case (typically, a rule supplied by political decisions made by an imperfect representative democracy).  Folks legitimately might disagree as to when the original meaning produces a determinate answer, or what counts as sufficiently determinate to supply a constitutional rule appropriate for judges to apply to invalidate political decisions.  But that should be the core of the enterprise.