Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The question of speaker sincerity has been curiously neglected in the originalist literature. But it is crucially important for evaluating most primary-source evidence of original public meaning—notwithstanding the common refrain that subjective intentions or motives are irrelevant.
Sincere statements about the Constitution’s meaning from the founding era are good evidence of the content the text actually communicated to the speaker and probably some other members of the ratifying public. Insincere statements that misrepresent the speaker’s understanding—or deliberately obscure the ambiguity of that understanding—are not good evidence of this kind. By definition, they do not reflect what the speaker actually understood the constitutional text to mean. This does not make such statements irrelevant. Rather, they are evidence of the meanings that the speaker believed a founding-era audience would find plausible. But insincere statements are also evidence that the speaker—and probably some other members of the ratifying public—believed the text was better read to communicate a different, or less determinate, meaning.
Of course, the available evidence will not always permit a confident conclusion about the sincerity of particular interpretive claims. But as in any high-stakes political contest, the temptation to make insincere or strategic claims during the ratification debates was enormous. This makes it crucial, whenever possible, to compare the statements made in those debates to the views that the advocates expressed in other settings more conducive to candor—e.g., in private letters or at the Philadelphia Convention, where the delegates were bound by a vow of confidentiality. When those views differ from the views that advocates publicly expressed, it is the former that provide stronger evidence of original public meaning by revealing the actual interpretive views of competent and contemporaneous English speakers about the Constitution’s communicative content.
Private, as well as public, statements are highly relevant to this exercise. In fact, such statements often provide better evidence—more reliable testimony—of a speaker’s actual understanding of the Constitution’s communicative content. This is in no way contrary to modern originalism’s focus on original public meaning. In seeking to ascertain what meaning the Constitution communicated to the ratifying public, we must begin by asking what it communicated to individual members of that public. And those individuals often discussed their understandings of constitutional meaning more candidly in private than in public, where the temptations to dissemble, exaggerate, or obfuscate were overwhelming.
This includes statements made by delegates at the Philadelphia Convention, which originalists and others often mistakenly dismiss as irrelevant to public meaning because they took place in secret. In an important sense, this conventional wisdom has it backward. On most questions, the secrecy of the Philadelphia Convention was more conducive to candor than the public ratification debates. That makes the statements of delegates to the Convention some of the most reliable testimony we have about the contextually-enriched meaning of the Constitution and, especially, the background assumptions actually held by an important subset of the founding generation. Those statements are also an extremely useful gauge for evaluating the sincerity of statements made by the Convention delegates during the subsequent ratification debates.