This Note surveys evidence concerning how early American Supreme Court Justices approached interpretation and construction based on an analysis of Supreme Court opinions from 1795 to 1805. An evaluation of this evidence indicates two main trends. First, the Justices engaged in interpretation and construction as a single process, alternating between textual and normative reasoning to determine the intent of the Framers or of Congress. In some cases, textual reasoning seemed determinative; in others, normative reasoning was decisive. This finding illustrates some tension between the idea of limiting judicial discretion in construction and applying methods of interpretation and construction that would have been used in the Founding Era. This may highlight important questions for some original methods originalists. Second, the Justices utilized a variety of tools and canons in the construction zone. Acquiescing to historical practice, deferring to national interest concerns, and using legislative evidence were all fair game. To the extent that modern-day theorists or jurists find Founding-era evidence of judicial practice relevant to contemporary debates about interpretation and construction, this Note offers evidence of how early American Justices went about determining the meaning of legal texts, and offers tentative conclusions about the implications for contemporary debates.
From Language to Law: Interpretation and Construction in Early American Judicial Practice,
Nw. U. L. Rev.