Mark Pulliam rightly criticizes nonoriginalist judicial activism but wrongly would depart from the original meaning in other cases.
I am late to the party discussing whether the Constitution is best understand through the prism of “popular” or “elite” meanings. There have already been fine contributions by Ilya Somin, Timothy Sandefur, Mike Ramsey and Mike Rappaport.
As Mike Rappaport has noted, he and I believe the Constitution is a legal document and thus legal rules will tell us how to determine meaning, including what degree we should look to evidence from popular as opposed to more technical meanings. I just wanted to add that there is substantial evidence from the Constitution itself that is was to be interpreted with legal rules. In that sense, it often cannot be understood without an elite sensibility, assuming we understand lawyers to be elites.
As we note in our article, Original Methods Originalism: a New Theory of Interpretation and the Case Against Construction:
The Constitution defines itself as the “supreme Law of the Land.” The fact that the Constitution was a legal document was not simply left to implication by the enactors but was set forth explicitly in the Constitution itself.
There are also specific indications in the text of the Constitution that the document would be interpreted according to legal rules. We provide some examples in our article. I want to add one more.
This indication is also in the Supremacy Clause and is particularly powerful because it shows that Framers were concerned that interpretation would be governed by one legal convention and therefore substituted another legal convention in its place. Understanding that substitution itself requires substantial background legal knowledge.
Caleb Nelson has comprehensively explained the reason that the phrase “any Thing in the law or the Constitution of the states notwithstanding” –the so-called “non obstante” phrase—appeared at the end of the Supremacy Clause. These words, which had appeared in other laws, were designed to block the application of a preexisting common law rule–that implied repeals are to be disfavored—to the question of the relation of federal law and already enacted state law. Traditionally a priority rule (and the Supremacy Clause is priority rule) was triggered only if the law were contradictory or “repugnant” to one another. Otherwise, the common law direction was to reconcile them. The “non obstante” phrase was a direction not to attempt this harmonize federal with state law. Judges were to give priority to federal law without bending it at all in the interests of harmonization.
Thus the “non obstante” phrase was deemed necessary as a guide to judges because legal conventions of judicial decisionmaking of the day were the substratum law onto which the new law of the Constitution was overlaid. This aspect of the Supremacy Clause provides internal evidence that the Constitution contemplated that legal rules of interpretation were going to be used to interpret it.
This kind of evidence makes it hard to argue that popular understanding can be prior to understandings guided by legal rules (which of course may direct us to popular understanding in some cases). The Constitution was not created ex nihilo but against a reticulated common law background, as the intricacies of the Supremacy Clause demonstrate. We should welcome this background, because the long history of the common law developed methods of resolving ambiguity and vagueness in language that people in their daily and legally unreflective life do not possess. To discard this background is to lose an important part of the precision that comes from civilization in its hard won legal form.