Sai Prakash has written a significant paper entitled Spirit which strongly argues that at the time of the Framing of the Constitution, interpreters looked to the the spirit of a document, not merely to its letter. As a result, he argues against the strict textualism of Justice Scalia.
Sai presents a large amount of evidence for this position. And it is hard to argue with his thesis that at the time of the Framing interpreters often referred to the spirit of a law. Ultimately, though, the question is what this evidence shows about interpretation.
In my view, the spirit of a law was used in a variety of ways that I think are consistent with originalism.
1. The spirit of a law was most often used to mean the purpose of or the intent underlying a law.
2. The spirit (purpose) of the law could be used to resolve an ambiguity in an ambiguous or unclear law.
3. The spirit (purpose) of the law could be used to determine whether there was an absurdity in the law that should be corrected even though its text seemed to unambiguously require the absurd result.
4. The spirit (purpose) of the law could be used to avoid an overly literal reading of the law. Consider the famous case of a law that forbade “drawing blood on the streets” that might have been applied to a surgeon assisting a patient in a way that caused bleeding. While the literal meaning of the term “drawing blood” applied to the surgeon, the usage of the term suggested it meant something like an attack or other violent action that caused bleeding and thereby excluded the surgeon.
5. The spirit of a law was used to refer to the purpose or the overall principle underlying a law that could be gathered from its structure. In those cases, that principle by itself was not necessarily enforceable (except in the way indicated by 2, 3, and 4 above). But that principle was used as a way of conveying the overall meaning and effect of a law. If an amendment was suggested for a law that conflicted with that principle, one might say that the amendment was contrary to the spirit of the law.
6. The spirit of a law might be used to guide the discretion of an official who had discretion under the law. For example, a prosecutor might not enforce the law in a certain circumstance on the grounds that enforcing it would be contrary to the law’s spirit. But if the law were enforced, a court would be required to apply it in that particular (contrary to the spirit) way.
I believe that all 6 of these examples are entirely consistent with an orthodox originalism, even though some of them might conflict with a very strict textualism such as John Manning’s. The key question is whether the spirit was ever used in additional ways that might conflict with this orthodox originalism.
7. One possibility is that it was used to interpret a law in violation of the unambiguous text even though the law did not create an absurdity. Instead, if the text were enforced, it would merely be inconvenient or less beneficial than the alternative, non-textual interpretation.
Courts sometimes engaged in such practices and sometimes even acknowledged they were doing this. Still, I believe that this was a minority view at the time of the Constitution. But even if one were to accept this as a method for interpreting the Constitution, it would still be consistent with a type of originalism – maybe not an orthodox originalism – so long as one enforced the spirit based on discerning the constitutional enactors’ purposes for the law. One would only get nonoriginalism if the spirit could be used to further purposes that the Framers did not hold or would have rejected. And I have not seen evidence that interpreters understood the spirit in this manner.
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