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“the task of constitutional interpretation is to accurately ascertain and then faithfully apply as law the objective original public meaning of the words and phrases of the constitution as a written legal instrument, that is the meaning that the words and phrases would have had to a reasonably informed speaker and reader of the English language at the time the text was adopted, considering the structure of the document and specialized uses of any terms of art.”
Michael Stokes Paulsen
The core requirements of originalism are
“(1) the meaning of a provision of the Constitution was fixed at the time it was enacted (the ‘Fixation Thesis’); and
(2) that fixed meaning ought to constrain constitutional decisionmakers today (the ‘Constraint Principle’).”
Barnett & Bernick, The Letter and the Spirit
Common Law Constitutionalism
What does the Court say it is doing?
What is the Court in fact doing?
What should the Court be doing?
Barry tried and convicted for premeditated murder of Mallem. Reversed on appeal. At second trial, jury hung. Judge ordered venue change to another county, which prompted petition for writ.
Fixation: "a right well known and commonly understood at the time of its adoption, and it is the right so understood which is secured by it"
Gift Clause reference to article 20 was fixed at time of 1918 amendment.
The "intent and purpose of the people when they adopted the amendment" was to incorporate the substance of the referenced provision "as it existed at the time of adoption."
We hold to our prior jurisprudence, that the right of trial by jury is determined by the laws as they existed at the time the Constitution of North Dakota was adopted. . . . The people of North Dakota may change this right if they choose.
2010 ND 76
"What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require.
The meaning of the constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it."
Const. Lim. at 67-68 (5th ed. 1883)
“When the Constitution speaks, its voice is supreme, and its mandates are to be obeyed by all departments and all officers of the state government.”
The 'true rule': "Contemporary construction can never abrogate the text; it can never fritter away its obvious sense; it can never narrow down its true limitations; it can never enlarge its natural boundaries." 12 N.D. 280 (1903)
The constitution of the state is its paramount law. It is a self-imposed restraint upon the people of the state in the exercise of their governmental sovereign power, either by themselves through the initiative or by their agency, the legislature.
2019 case involving embezzlement of $690,000 from oil field services company and order for restitution in that amount
The Court read the 2016 victims rights amendment as impliedly repealing or abrogating inconsistent statutes limiting restitution by defendant's ability to pay.
Baude & Sachs, The Law of Interpretation 130 Harv. L. Rev. 1079
Not what what do these words mean, but what law did this instrument make?
"The intent of the convention is not controlling in itself; but, as its proceedings were preliminary to the adoption by the people of the Constitution, the understanding of the convention as to what was meant by the terms of this provision goes a long way toward explaining the understanding of the people when they ratified it."
"How shall we reasonably assume the people, in ratifying the Constitution, understood it?"
"When interpreting the Constitution, it is our overriding objective to give effect to the intent and purpose of the people adopting the constitutional statement. Such intent and purpose are to be found in the language of the constitution itself."
City of Bismarck v. Fettig, 1999 ND 193, ¶ 8
Which among several definitions?
"right of trial by jury"
"general superintending control"
Both the Proceedings and Debates and the Journal of the 1889 Convention are sparse.
Committee work unrecorded.
Some press coverage.
Publicity pamphlets were published until 1965.
Bill of Rights incorporated against the states through Fourteenth Amendment.
Court may look to history of time when provision was enacted to consider prior law, mischief, and remedy.
Jerod Tufte, The North Dakota Constitution, an Original Approach Since 1889, ___ N.D. L. Rev. ___ (forthcoming 2020).
Sources and materials available at ndconst.org