Spirit

The Founders were not textualists. The letter of the law mattered quite a bit. But, as William Blackstone noted, interpretation also required the consideration of purpose, reason, and intent—what he and many others called “spirit.” This Article makes several contributions. First, spirit was a potent factor, for it not only helped resolve textual ambiguities, it also could trump the letter of the law. Specifically, spirit could extend the meaning of the law beyond its letter—extensive interpretation. And spirit could restrict the meaning suggested by the letter of the law—restrictive interpretation. Second, spirit was a familiar tool, applicable to constitutions, laws, treaties, judicial precedents, and even executive rules. Third, spirit was not the peculiar province of the courts. Instead, spirit was more democratic, for everyone made free use of it. Early federal legislators, including James Madison, invoked spirit to make sense of the Constitution. Executives, including George Washington, Alexander Hamilton, Thomas Jefferson, and many others, utilized spirit to make sense of the Constitution, laws, and treaties. John Marshall deployed spirit to trump the letter before he was Chief Justice and continued invoking spirit while on the bench. This excavation of Founding-era practices bears on modern debates. To begin with, the Founders eschewed the extreme fixation on text that characterizes modern textualism. Relatedly, given that the Founders routinely considered spirit, textualists should reassess their claim that the Constitution mandates modern textualist precepts. One should not use a late twentieth-century theory to make sense of late eighteenth-century documents, including the Constitution. Lastly, originalists of all stripes should refine their understanding of originalist methodology, for a proper conception of originalism should perhaps reflect the actual practices of the Founders. Public meaning originalists, original methods originalists, and every other species of originalist must reckon with spirit’s central role in early American practice. For too long, we have been in the thrall of a textualism that is at war with the pervasive use of spirit at the Founding.