Constitutional Originalism and the Framers’ Intent

By the Editorial Team · Tuesday, October 13, 2026

Justice Samuel Alito criticized originalist judges for potential errors in applying constitutional interpretation based on the public’s understanding at the time of adoption, emphasizing the perspective of ordinary colonial citizens. Legal scholars argue this approach overlooks the framers’ distinct intent as appointed representatives, highlighting ongoing debates about prioritizing framers’ meaning versus popular interpretation in constitutional law.

Justice Samuel Alito recently highlighted errors that originalist judges can make when applying constitutional interpretation. Central to his view is the idea that constitutional provisions should be understood as they were by the public at the time of their adoption. He defines the “public” as ordinary colonial citizens—such as tavern patrons who read newspaper accounts of the proposed Constitution.

However, legal scholars have pointed out complexities regarding this frame of reference. Professor Emeritus Michael J. Polelle of the University of Illinois Chicago School of Law argues that focusing on how the general public interpreted the Constitution may overlook a crucial aspect of its creation. Unlike a direct democracy where all citizens participate in lawmaking, the framers of the U.S. Constitution were appointed representatives within a republican system. Fewer than 50 individuals signed the document, and as elected delegates, they operated with a different understanding than the broader population, which numbered more than two million at the time.

Polelle asserts that the framers’ interpretations of constitutional language should be given priority when their understanding diverges from that of the wider public. For example, in 1787, ordinary citizens reportedly viewed the term “misdemeanor” as a minor crime, similar to today’s usage. In contrast, the framers saw “misdemeanor” as relating more specifically to breaches of trust or abuses of office, not necessarily encompassing criminal acts in the usual sense.

Justice Alito has similarly emphasized divergences in historical interpretation on other constitutional issues. He noted that neither the general public nor lawmakers in 1868, when the 14th Amendment was ratified, understood the concept of “liberty” to include same-sex marriage. This example highlights ongoing debates about whether constitutional meaning should rest with the popular understanding at the time or the framers’ intent and expectations.

The discussion reflects broader tensions in constitutional theory between originalism’s reliance on historical meanings and the challenges of interpreting language within evolving social and legal contexts. While originalists seek to anchor constitutional interpretation in the past, questions remain about whose understanding—ordinary citizens or framers—should serve as the authoritative guide when meanings diverge.

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