Unlike Justice Stevens, who has filled his retirement from acting status by writing books and railing against Justice Scalia, Justice Souter has continued to perform yeoman’s work through sitting by designation on the First Circuit. At this point, Souter has probably heard more cases on the First Circuit as an Associate Justice than he did during his brief five-month stint there from May to October of 1991. Yesterday, he authored the panel opinion in a fascinating case I have been following for some time.

The case involves Congregation Jeshuat Israel, which occupies the Touro Synagogue in Newport, Rhode Island (the same Synagogue that George Washington wrote to two centuries ago) and Congregation Shearith Israel in New York. Part of the dispute concerns the ownership of the rimonim, “a pair of finials with attached bells made of silver and gold and designed to surmount the shafts around which the Torah scrolls were rolled.” Specifically, the court had to determine whether the word “paraphernalia” in a contract written in 1903 embraced the remonim. To do so, Justice Souter employed an analysis that could only be described as originalist: how was the word understood at the time the document was drafted.

He explained:

Although the district court declined to read “paraphernalia” as encompassing rimonim, owing to a lack of affirmative evidence that the CJI signatories understood the term “paraphernalia” this way, we think no such specific evidence is necessary. Contracts are generally construed in accordance with the common understanding of their terms at the time of the agreement, and the common understanding in 1903 would have covered the rimonim associated with Touro under the term “paraphernalia.” See Paraphernalia, The Century Dictionary and Cyclopedia (1903) (“Personal ornaments or accessories of attire; trappings; equipments, especially such as are used on parade, or for ostentatious display, as the symbolic garments, ornaments, weapons, etc., used by freemasons or the like.”); Paraphernalia, Webster’s International Dictionary of the English Language (1900) (“Appendages; ornaments; finery; equipments.”); Paraphernalia, A Standard Dictionary of the English Language (1894) (“Miscellaneous articles of equipment or adornment; appendages; belongings; finery.”).

If “Contracts are generally construed in accordance with the common understanding of their terms at the time of the agreement,” why should the Constitution not be construed in the same way?

As Randy Barnett and I explain on the very first page of our new constitutional law casebook, “As with written contracts, to properly assess what the Constitution says, we must make ourselves aware of what it assumed.”