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In recent discourse surrounding constitutional interpretation, the prevailing method at the U.S. Supreme Court has been the doctrine of “original public meaning.” This approach requires that the Constitution be understood as it was perceived by the public at the time of its adoption. Justice Amy Coney Barrett, among others, has articulated the argument that the Constitution’s meaning is fixed at the time of ratification, a principle treated as binding law. However, there is a growing discussion about a viable alternative: interpreting the Constitution according to its contemporary public meaning.
Contemporary public meaning seeks to determine how today’s public understands the Constitution, using objective sources such as modern dictionaries. This method aligns with the “rule of recognition” associated with legal philosopher H.L.A. Hart, which emphasizes the current societal acceptance of legal rules over their historical origins. Proponents argue that in a democratic society, the interpretation of constitutional provisions should reflect current understanding rather than historical views.
The debate is not merely theoretical. Contemporary public meaning may better serve a democratic government by allowing constitutional interpretation to evolve alongside societal changes. This approach also acknowledges that the Constitution, despite being the oldest active governing document in the world, was created at a time with limited democratic participation. Thus, interpreting it through a modern lens respects the complexities of today’s democratic environment.
While both methods of interpretation face challenges, such as differing public meanings over time, proponents of contemporary public meaning suggest it is more suitable for a self-governing society. It calls for judicial restraint and deference to legislative judgments when public meaning is unclear. However, it distinctively separates itself from “living constitutionalism” by emphasizing that the text itself, not extrinsic moral aspirations, controls the interpretation.
As the debate unfolds, the establishment of contemporary public meaning as a method of constitutional interpretation could steer the judicial branch towards a more adaptable and democratically aligned future.
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