It is not possible to argue that the framers wisely created the electoral college and provided a sound basis for selecting the president in the twenty-first century. The electoral college does not work at all as the framers anticipated. Electors rarely exercise discretion and are condemned when they do. Instead, they are agents of political parties, which did not exist in 1787. The House has not selected the president since 1824. In addition, most of the motivations behind the creation of the electoral college are simply irrelevant today. Legislative election is not an option, there is little danger that the president will be too powerful if directly elected, voters have extraordinary access to information on the candidates, there is no justification at all for either electors or state legislatures to exercise discretion in selecting the president, defending the interests of slavery is unthinkable, and the short-term pressures have long dissipated. Those delegates who wanted electors to exercise independent judgment or be selected by state legislatures would soon be disappointed, and there is no support—and no justification—today for either option. In addition, the broad thrust of constitutional revision over the past two centuries has been in the direction of democratization and majority rule.

Nearly all of our current debates over constitutional interpretation have happened before, including those involving complex insights from linguistics, philosophy, and history that feel very modern to us. This book, while not intended to be a complete account of judicial decision making, has focused on what it has meant to interpret a legally authoritative text for many generations, and has shown how that traditional definition of interpretation maps onto the creation and interpretation of the US Constitution. It argues that constitutional theory needs to pay considerably more attention to the one constant theme through the various cycles of interpretive methods over the centuries: a search for the will of the lawmaker.

The nation’s Founders have tremendous public appeal, and advocates of originalism, such as Justice Antonin Scalia, and the living Constitution, such as David Strauss, have invoked the Founders for support in their arguments for interpretive methods that nevertheless leave the Framers out of the picture. As a result, American constitutional theory has increasingly shifted its focus away from the lawmaker’s intentions. To provide a sound basis for the process of interpretation, constitutional theory needs to return to its historical core, which is an understanding of the decision made by the lawmaker in adopting the text. As a practical matter, determining that original choice will require an inquiry into the Framers’ understandings as shown in the record of the drafts and debates.

Identifying the will of the lawmaker has long been the central interpretive inquiry in American jurisprudence, an approach this nation inherited from a very lengthy set of legal predecessors. A great deal of commentary throughout Western legal history has been devoted to the questions of what constitutes the will of the lawmaker, and where interpreters should find evidence of that will, but there has been impressive agreement on the question of whether interpreters should do so. This chapter will address both what and where, but, first, there is a question that is peculiar to the American constitutional setting: who is the lawmaker? This chapter argues that the primary lawmaker is the Framers, and, only secondarily, the ratifiers. Based on work by Richard Ekins and others, it shows that there actually can be an intention of the constitutional lawmakers that is recoverable by interpreters. It also shows that the records of the constitutional debates and drafting can potentially provide essential information for interpreters seeking to determine what policy choice was made by the adoption of the constitutional language – that is, the ends and means represented by the text.

This chapter demonstrates that the search for the lawmaker’s intentions – their end–means choice – was the central element of the Framers’ “original methods” of interpretation, as discussed by John McGinnis and Michael Rappaport. It also shows that dynamic or updated interpretations have an equally long heritage, although there is a sharp distinction between updated interpretations and judicial policymaking. The history of interpretation shows how it is possible to distinguish between decisions involving interpretive adaptations to new circumstances, and results-oriented, noninterpretive decisions.

This chapter demonstrates how seeking the Framers’ intentions by reviewing the debates and drafting history leading to the final versions of the Constitution can resolve the semantic summing problem in the case of two highly contested and frequently litigated clauses: the tax clauses and the Establishment Clause. In doing so, it shows how, in practice, a search for the Framers’ intentions – that is, the end–means policy choices they made – can be done in light of the nature of the documentary record, and how it can resolve otherwise difficult interpretive tasks for which public meaning approaches are inadequate. In these cases, there is also evidence that the Framers’ understandings were known to the ratifiers and the public, and thus point to the meanings that were likely to have been understood by the those groups as well.