A Short Thought On Constitutional Interpretation

The “original intent” theory of Constitutional interpretation says that we ought to understand the Constitution in terms of what the author intended the Constitution to mean. This theory is associated with conservative legal theory.

The “vectors of history” theory of Constitutional interpretation says that we ought to understand the meaning of the Constitution as shifting over time. This theory is associated with liberal legal theory.

If we believe in objective truth, we might find reason to not entirely buy into either theory. If we are trying to understand what, for example, cruel and unusual punishment is, we might look at the authors of the Constitution, as original intent theory does. Or we might look at what people today think of as cruel and unusual.

Both these approaches might tell us something important about what punishments are cruel and unusual.  Neither necessarily tell us what punishments actually are cruel and unusual. Both the founding fathers and prevalent opinion may well be wrong. If concepts have real, objective meanings, they are not limited by what the people who use them think that they mean.

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