First, the Framers and Ratifiers
did not use the Declaration as a special key to the creation or interpretation of the Constitution.
Multitudinous, because different framers and ratifiers
had different intentions, with the consequence that intentions alone cannot fix consistent (noncontradictory and not radically ambiguous) semantic content.
Originalism has been understood as the belief that "only certain sorts of historical evidence, such as the understandings of constitutional meaning of the Philadelphia framers or ratifiers
of the Constitution, are legitimate in constitutional interpretation." (100) So understood, it lays claim to exclusivity in constitutional interpretation.
Canadian critics of legislative intent attack the "what" (the existence of a collective intent), the "who," (ambivalence about whether interpreters are concerned with the intent of drafters, ratifiers
, or both), and the why (the justification for intent as authoritative).
So far as I know, no one has attempted to demonstrate that the drafters and ratifiers
themselves had common knowledge of the relevant intentions (of course, the knowledge could have been tacit or implicit).
I, and a majority of the members of my court, consider ourselves "judicial traditionalists." (4) As such, we believe that a constitution has "an ascertainable meaning that is rooted in the history of its creation." (5) In interpreting the Michigan Constitution, we believe that we "must give meaning to the text as it was understood by its ratifiers
(5.) The problem of collective intentionalism or the so-called summing problem argues that it is impossible to discern what multiple founders or ratifiers
intended when they approved the constitutional text.
According to Sunstein, "if we believe that the meaning of the Constitution is settled by the original understanding of the ratifiers
, then the people themselves are probably ill-equipped to uncover that meaning, and judges should pay little or no attention to the public desires." (11) However, throughout his entire book, Sunstein essentially argues that the people in one form or another should have a role in interpreting the Constitution.
Meese focused on the intent of the drafters; (39) Berger initially concurred, (40) but later shifted his focus to the intent of the ratifiers
Perhaps that is why he omits mention of what University of Chicago law professor Philip Hamburger made clear: that Black's position is owing not to what the ratifiers
made of the Constitution (including the amendments), but to Black's own background in the Ku Klux Klan.
The Amendment's text thus fits better with the views expressed by its many antisegregationist supporters and ratifiers
. I mention all this because I think you are rather too quick in dismissing the basic originalist argument for Plessy's wrongness and Brown's rightness.
for Democracy submissions to the Australian National Health and Medical Research Council: (1) 2002, http://www.ratifiersfordemocracy.