Originalist thought has not just been on a steady legal trajectory over the last 20 years. There is also an important and overlooked political story to tell.
This past weekend, the Center for the Study of Constitutional Originalism at the University of San Diego held its Sixth Annual Works-in-Progress Conference. I had thought I might blog about a couple of the papers.
One of the papers – Founding-Era Translations of the Federal Constitution by Christina Mulligan, Michael Douma, Hans Lind and Brian Patrick Quinn – involved the discovery of some new information about the original meaning of the Constitution. At the time of the Constitution, significant portions of Pennsylvania and New York were respectively inhabited by German and Dutch speaking citizens. As a result, the Constitution was translated into German and Dutch during the ratification contests in these states and these translations were relied upon by the German and Dutch speaking citizens.
For originalists, these translations represent an important new piece of evidence about the original meaning. They are in some ways similar to commentary at the time that indicates the meaning of the Constitution. But the translations differ in that they translate the entire Constitution. And unlike contemporary dictionaries, the translations are in context – that is, rather than the modern originalist having to consult a dictionary with a number of word meanings, he needs only to review the word that the translator inserted into the specific clause.
But there is a downside to these translations. For modern English speakers to understand them, they must rely on people who have knowledge of 18th century German and Dutch. The question is why modern people would have more knowledge of 18th century German and Dutch than of 18th century English. While we would probably not, still this information is one more data point as to the meaning of the Constitution.
One interesting piece of information is that the German and Dutch translations seem to confirm the narrow understanding of the Commerce Power – that is, the commerce power extended to buying and selling rather than to all productive activities undertaken for profit. The German and Dutch translations both suggest this meaning.