I don’t think we can say this confidently unless we’ve dug through the evidence ourselves. It will also depend on the issue, of course. Above I linked to my two papers offering an answer to the basic interpretive question about the Equal Protection Clause, and explaining why that answer would be relevant to lots of litigation today. Having looked at the details on that issue, there are some bits of evidence that considered in isolation favor the traditional view, but I think that they are swamped by evidence in favor of a duty-to-protect view. Similarly, I don’t think we can infer just from the fact that Hamilton and Jefferson disagreed that neither of them had a better argument on the basis of the constitutional text. The existence of reasonably strong arguments on both sides isn’t the same as evidentiary equipoise.

“Since the founding fathers themselves disagreed as to the nature of the history of the period and as to the best kind of government for a new nation, it is possible to find arguments to support almost any interpretation one chooses. It is not surprising therefore that conflicting interpretations have filled thousands of pages and that all this effort has never produced any final answers and probably never will, for men have ever interpreted [the Constitution] in terms of their hopes, interests, and beliefs rather than in terms of knowable facts. . . . When the Constitution was submitted to the public in October 1787 the controversy rose to new heights. Men talked in public meetings and wrote private letters and public essays in an effort to explain, justify, or denounce what the Convention had done. . . . Some said there would be chaos without the new Constitution; others said that there would be chaos if it were adopted. . . . The two basic interpretations may be simply stated. Jefferson held that the central government was sharply limited by the letter of the Constitution; that in effect the states retained their sovereign powers except where they were specifically delegated. Hamilton argued in effect that the central government was a national government which could not be restrained by a strict interpretation of the Constitution or by ideas of state sovereignty.”

[Tentatively raises hand.] I don’t think that understanding what someone has said in a previous generation is any different as a conceptual matter from understanding what someone said across the breakfast table. It might be difficult, but that’s no excuse for not making an effort. If it’s possible to ascertain the beliefs of blog commenters in an objective way, then it’s possible to do the same thing with the 39th Congress (or the 42nd).

I think we need an extremely powerful showing to support a claim that the historical record cannot establish what particular language means. That said, I think an assessment of the referent of constitutional language generally depends on factual determinations about which the framers could be ignorant, or even wrong. See here.

Or is deconstructionism “out” again among historians? It’s been a while for me since my sophomore tutorial.

For Brown, see the second half of this.

For one example of how original-public-meaning interpretation (though I’d prefer “textually-expressed sense”) can make a difference to the clauses that people really care about, see here and here, arguing that the historic textually-expressed sense of the Equal Protection Clause is an entitlement to the “protection of the law,” i.e., law-enforcement and remedial services. (The Privileges or Immunities Clause is what protects against second-class citizenship.)

For example, until the John McCain flap showed up, a clause that most people might think would be subject to Step One analysis would be the “natural born citizen” clause.

[H]owever large or small is “the domain of construction” is to be decided after we decide what meaning is conveyed by the text. I believe (a) that a great many cases would be decided by this meaning, (b) choices within the remaining domain of construction would still be bounded by this meaning, and (c) a good deal of constitutional law would still be required to put the meaning of the Constitution into effect.

What I’m not clear on is whether “a great many” cases is a large percentage or not. There are an awful lot of constitutional issues raised every year so even a small percentage might be “a great many.” I’m also not clear on what percentage of the “great many” are hard cases, not “thirty-five means thirty-five” type cases. Looking through The Lost Constitution, the interpretation of “commerce” seems to me to be the one area where Barnett has a clear argument that the original public meaning alone can determine the outcome of widely contested cases.