35: Multitudes
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We discuss the common law and originalism with law, literature, and history scholar Bernadette Meyler. Some of today’s most intense constitutional controversies revolve around the proper sources of interpretive tools. Some forms of originalism, believing judging is legitimate only if it foregoes political choice and instead adopts the choices made by democratically accountable institutions, attempt to locate the sole meanings that constitutional text, whether “natural born citizen,” “habeas corpus,” or “ex post facto,” had in the common law at the time of its adoption. Bernie’s research reveals that the common law itself, rather than speaking with one voice, exhibited some of the same diversity of interpretation and opinion that we see in debates about meaning today. Nonetheless, she believes that interpretation that gives weight to those original debates, rather than non-existent singular meanings, is better justified than unmoored living constitutionalism. She calls this method “common law originalism.”…