How to Win a Prize for Writing About Originalism

The new Eaton Award from the University of Chicago Federalist Society: This year's topic is "Does originalism still work?"

I am pleased to report the University of Chicago Federalist Society has a new writing prize, the Eaton Award, available to members of the Federalist Society anywhere in the country so long as they do not have an extensive history of academic publication.

This year's topic is "Does originalism still work?" Both defenders and critics of originalism are encouraged to submit!

The full announcement is below:

University of Chicago Federalist Society

Announcing the Eaton Award:

The University of Chicago Federalist Society is excited to announce the Eaton Award, a writing prize made possible by the generosity of Professor Philip Eaton. The award is designed to encourage new scholarship in the area of Constitutional Law and to develop young Constitutional Law scholars. The winner of the 2021-2022 award will receive an amount in excess of $2000 (to be finalized later) as well as recognition for them and their work.

This year's topic and the rules for submission are below.

Prompt: Does originalism still work?

Justice Scalia defined originalism as interpreting the Constitution according to "what it meant when it was adopted" instead of "what current society, much less the Court, thinks it ought to mean." At the time, these claims were controversial, but in the next generation many legal thinkers followed Justice Scalia's approach. There are now at least four, and as many as six, self-identified originalists on the Supreme Court.

Originalism's animating principles are well-known. Originalism promotes consistency by pointing judges to something outside themselves and their policy preferences. Originalism protects democracy by preserving the will of the people as articulated in the Constitution and its many amendments. Originalism is faithful to the nature of the Constitution and its text. Originalism is part of our law and promotes the rule of law.

Much has changed since the defining days of originalism. Faith in our institutions is treacherously low. The COVID-19 pandemic has upended society. Political division has driven our nation to the brink of constitutional crisis. And many conservatives believe originalism is no longer delivering what it promised. As we sit here today, are the justifications for originalism still convincing? Or should those who believe in freedom, the separation of powers, and the rule of law develop a new approach to constitutional interpretation? Does originalism still work?

Rules for submission:

This essay competition is open to members of the Federalist Society anywhere in the country who do not have an extensive history of academic publication. The essay should be no longer than 50 pages, though we welcome shorter (or even much shorter) submissions. The essay may be of any style, but it must be original and previously unpublished at the time of submission. The author is welcome and encouraged to publish it later. (If you are unsure if your essay is eligible, please submit it!)

The winner will be judged by a committee made up of members of the University of Chicago Federalist Society chapter plus two outside experts in constitutional law (including one faculty member at the University of Chicago Law School).

Please submit your essay by email to Conley Hurst, [e-mail], by March 15, 2022.

The winner will receive a cash prize in excess of $2000, be recognized at an appropriate ceremony by the University of Chicago Federalist Society Chapter, and will have their essay promoted and circulated to other members of the Federalist Society by the Chapter.

Comments

[bernard11]

So the point here is that, because originalism doesn’t consistently produce the results you want there is a case for discarding it as a means of constitutional interpretation?

But I thought it was eternal, written in stone, the only logical and consistent way to do it, etc.

So it really is just a veneer for a results-oriented conservative jurisprudence? Gee, who could have suspected?

[Sarcastr0]

To be fair, Baude is pretty consistent.

But that does seem to be the debate here, and the academic wing of originalism confronting the political/instrumental wing head-on seems a good idea. And also one that has me reaching for the popcorn.

[bernard11]

OK. It’s not clear to me who, individually, wrote the announcement.

Still, this

Or should those who believe in freedom, the separation of powers, and the rule of law develop a new approach to constitutional interpretation? Does originalism still work?

is really galling and presumptuous. Is it really impossible to believe in those things, especially “freedom,” and not now be, or ever have been, an originalist?

[Sarcastr0]

Yeah, that’s fair.

[David Nieporent]

is really galling and presumptuous. Is it really impossible to believe in those things, especially “freedom,” and not now be, or ever have been, an originalist?

Maybe, but I mean, you understand that this is a contest for Federalist Society members, right? You’re not the audience.

[Sarcastr0]

Yeah, but it’s still toxic to claim a monopoly on virtue in your academic solicitations.

[Michael P]

Did it occur to you that one might answer the headline question in the affirmative?

[bernard11]

Sure.

But the very phrasing of the question – does it work? – suggests that it is a tool to be used to achieve desired results.

If you think it’s truly a principle to stick with, regardless of results, then you don’t worry about whether it “works.”

[Michael P]

Sure, just like leftists don’t worry whether socialism “works”. They stick with it nonetheless!

[bernard11]

Oh fuck off.

You’re an idiot.

[Michael P]

No, you’re just wrong. People should absolutely consider the practical effects of the philosophies they take. Religion is the domain of blind belief, regardless of consequences.

[Krychek_2]

Michael, you mean like the right-wing talking points that you believe with the faith of a child, and manage to insert into every conversation whether germane or not?

First of all, most leftists aren’t socialists, so your initial claim about leftists sticking with socialism is based on a flawed premise, and you go downhill from there. It’s not even relevant to this thread since the subject is constitutional originalism. It’s the logical fallacy of tu quoque. In other words, your comment is basically a time waster and a distraction, which is why bernard told you to fuck off.

[Michael P]

Aww. You and Sarcastr0 can’t defend bernard’s moronic partisan assignment of bad faith, so you try to attack the messenger instead.

Grow up, both of you. Leftists sticking to a failed Marxist religion is a good example of the behavior that bernard was complaining about. This Federalist Society competition is an open invitation to debate whether constitutional originalism is a good framework. The question is open-ended to give writers the freedom to argue for what metric to use, rather than just the final evaluation of originalism.

[Sarcastr0]

Bernard’s point stands on it’s own.

Your decision to go on a redbaiting rant about the libs rather than address it does as well.

[Michael P]

No, his point falls flat on its face because it involves nothing more than assigning bad faith to people he disagrees with. And you know it, which is why you don’t bother defending it. You instead complain when I illustrated the same fallacy, not realizing how hypocritical you are being.

[Krychek_2]

OK, anybody who seriously thinks “leftists” equals “Marxist” is far too stupid to waste time on. Good day.

[Sarcastr0]

You’re off on an irrelevant tangent because you’re unable to defend your ends-justify-the-means take on originalism.

[bernard11]

WTF am I wrong about?

I don’t disagree that “People should absolutely consider the practical effects of the philosophies they take.”

But that’s not what we have been told repeatedly that originalists do. Instead they consider theirs the One True Faith, a “blind belief, regardless of consequences,” as you put it.

Now this notion seems to render all that false, and says that the value of originalism is none of the virtues usually claimed for it, but rather is purely instrumental. “Hey, originalism gets us to this answer we like, so we should be originalists.”

[Krychek_2]

But I thought that to an originalist, whether something works (which is largely in the eye of the beholder anyway) is largely irrelevant. If enough people think it’s not working, that’s why we have an amendment process. Or something.

[Alpheus W Drinkwater]

I suppose you could interpret the question as asking if originalism still works as a principle that “promotes consistency by pointing judges to something outside themselves and their policy preferences.” Rather than whether it still works in the sense that it provides the outcomes desired by your average FedSoc member.

Were I overly cynical, I would say that now that the FedSoc has managed to put so many of their candidates on the bench, perhaps they no longer want a principle that acts to prevent judges from using their policy preferences. But I’m not overly cynical, so of course I would never say that.

[Cal Cetín]

OK, here goes. Please consider this my contest entry:

Originalism is an original idea to interpret the Constitution originally. It was originally thought up by some smart guys but it came into the hands of some guys who weren’t as smart, or who were smart but weren’t fully into being originalist, or smart but disagreed with each other about what originalism meant.

It is necessary to replace originalism with a doctrine which produces more predictable results consistent with the rule of law – a doctrine like living constituitonalism.

If I haven’t reached met the word limit yet, please copy the sentence “all work and no play make Jack a dull boy” a few hundred times until the word limit is reached.

In deciding who won this contest, please count the votes fairly – I don’t want to see a rigged vote which causes someone else to win. Thank you.

[Cal Cetín]

Wait, I just noticed this:

“The winner will be judged by a committee made up of members of the University of Chicago Federalist Society chapter plus two outside experts in constitutional law (including one faculty member at the University of Chicago Law School).”

OK, I have a better idea for an essay.

“Robert Maynard Hutchins was the closest thing earth has seen to a demigod. He was so completely awesome that only an awesome person like him would have been worthy of being President of an awesome university like the University of Chicago, which is like what the Athenian Academy *wished* it were.

“If Robert Maynard Hutchins were alive today – if you can truly think of such an immortal demigod as him as being dead – then he would have been an originalist. Please send me my prize money in unmarked 20s. Thank you.”

[Rev. Arthur L. Kirkland]

Originalism.

Still less popular than, less persuasive than, less influential than, less principled than, less important than, and likely the possessor of a relevant lifespan roughly similar to that of Kim Kardashian.

Originalism is, however — as its proponents eagerly note — slightly older than Kim Kardashian. Maybe a few months. So it has that going for it, which is nice.

Will this prize will incline our strongest law faculties to devote more attention to originalism? To treat it with respect?

Just kidding. Carry on, clingers.

(That song was influential in its day.)

[Archibald Tuttle]

Did you know that Justice Breyer is an originalist? I learned that from his little speech during oral arguments of Dobbs v Jackson Woman’s Health. But he has his own definition.

Breyer believes in a living Constitution, but once SCOTUS makes a decision (right or wrong) the original meaning of that decision must live on forever, overriding other interpretations of The Constitution, and decisions not themselves subject to living interpretations. When Breyer says stare decisis, that’s what he means.

So as more and more SCOTUS decisions are published, the Constitution becomes less and less living.

[Sarcastr0]

When Breyer says stare decisis, that’s what he means.

Ah yes, the ‘a question in oral argument defines your entire jurisprudence’ trick.

[Queen Amalthea]

“”what current society, much less the Court, thinks it ought to mean.”

Which major jurist or constitutional scholar advocated ignoring the text and interpreting the Constitution as what they thought it ought to mean?

[QuantumBoxCat]

“Justice Scalia defined originalism as interpreting the Constitution according to “what it meant when it was adopted” instead of “what current society, much less the Court, thinks it ought to mean.” At the time, these claims were controversial, but in the next generation many legal thinkers followed Justice Scalia’s approach. There are now at least four, and as many as six, self-identified originalists on the Supreme Court.”

To understand why Originalism doesn’t work, read Waite’s opinion in Reynolds v. U.S. (1879), and Scalia’s opinion in Employment Division v. Smith (1990). Then do a search on the Federalist Society’s website for “Employment Division v. Smith.”

In Kennedy v. Bremerton School Dist. (2019) Alito (joined by Gosurch, Thomas, and Kavanugh), concurring in the denial of cert, stated that the Court in Smith “drastically cut back on the protection provided by the Free Exercise Clause,” a claim that would probably confound Chief Justice Waite.

Originalism rings hollow when one is able to observe that the “original understanding” changes with the times. It’s just Living Constitutionalism packaged for conservatives.

[Cal Cetín]

As long as you have an interpretive method which respects the amendment process in Article V, I’m interested in the argument.

Where religious exemptions are concerned, whatever the Founders subjectively felt, a First Amendment which invalidates Patrick Henry’s nondenominational religious-assessment bill but allows the conscription of Quakers and the violation of the seal of the confessional, sounds like fairly thin gruel.

If Justice Waite had applied the compelling interest test instead of saying “do whatever we tell you regardless of your silly minority beliefs,” I’d have liked his opinion better.

[Cal Cetín]

Oh, that goes for Scalia, too. RIP and all that, but he could (gasp!) be wrong.

[Queen Amalthea]

“a First Amendment which invalidates Patrick Henry’s nondenominational religious-assessment bill but allows the conscription of Quakers and the violation of the seal of the confessional, sounds like fairly thin gruel.”

???

[Cal Cetín]

Run-on sentence, eh?

Let’s try it this way so readers can follow it more easily.

The Waite/Scalia version of the 1A…

…would make Patrick Henry’s religious-assessments bill unconstitutional…

…but….

…it would allow Quakers to be drafted…

…and…

…it would allow the violation of the confessional seal.

[Dilan Esper]

It never did.

[Queen Amalthea]

“Originalism rings hollow when one is able to observe that the “original understanding” changes with the times.”

This is especially the case when the language in question is inherently era dependent (‘cruel’).

[bernard11]

Justice Scalia defined originalism as interpreting the Constitution according to “what it meant when it was adopted”

Which is actually sort of silly. For one thing, what words “mean” can be determined a number of ways. For another, we obviously have to deal with cases and facts that were not contemplated at the time. There is an argument about whether some methods lethal injection used for capital punishment constitute “cruel and unusual punishment.” Did that phrase encompass those methods in 1792 or not?

[Stephen Lathrop]

“. . . interpreting the Constitution according to “what it meant when it was adopted”

bernard11, it more than the, “what,” it is also the, “when.”

Times in the remote past have associated with them characteristic modes of thought, largely unknown to non-historians today. Nothing about those modes of thought was determined alike with today’s modes of thought, which are largely products of occurrences which took place in the interval between then and now. Which is to say that prior to those occurrences, people in the past who attract the attention of today’s inquiry knew almost nothing about today’s modes of thought, and consequently did not think the way we do. Almost everything influential with regard to today lay in their unknowable future.

Except by actual historical inquiry, the thought of bygone eras is as inaccessible to us as our thought was to them. Note that nothing about actual historical inquiry features at all in any modern definition of originalism.

Even assuming that historical inquiry actually would happen, there is a logical contradiction which forbids any attempt to mine the past for recoverable nuggets which can be put to work as evidence in today’s controversies. The transposition of the would-be evidence from the then-context of which it was an organic part, to the now-context of which it is no part, cannot fail to change its meaning.

[SimonP]

It saddens me to see anyone at the UofC law school writing claptrap like this. Better than Josh’s work, for sure, but still lamentably vacuous.

Setting aside Scalia’s own polemic, here’s how the author describes “originalism”‘s “animating principles” (which – it must be noted – is a strange formulation in itself: is originalism an ideology, or is it a theory of constitutional interpretation? Why does a putatively anodyne manner of resolving questions of interpretation require animating principles?):

Originalism promotes consistency by pointing judges to something outside themselves and their policy preferences.

Ah, so the author has attended 1L’s Elements of Law class. This, indeed, is on the banner that every originalist carries into battle, though it rests on a kind of insultingly false and specious smear of centuries of jurisprudence. No judge, surely, views themselves as relying on nothing other than “their policy preferences” when deciding cases. Rather, they view themselves as looking to the law, as actually presented to them. We might quibble with whether they are doing so with the good-faith earnestness we expect of them, but it’s not as though judges are lost without the pure dictates of an originalist method to lead them home. Every judge, from the founding to the present, views themselves as applying the law.

Besides which, the broad pronouncement is so easily rebutted by actual evidence that it’s simply untenable. Consistency among originalists is woefully absent, and judicial originalists embarrass themselves by purporting to apply the method with exacting precision. You find them picking and choosing dictionaries, practicing sloppy history, and punting on puzzling or disputable questions of “original” meanings in ways that provide them ample room for their “policy preferences” to play – as indeed we found in Scalia’s Heller decision.

Originalism protects democracy by preserving the will of the people as articulated in the Constitution and its many amendments.

This is a new one to me. I’m accustomed to the dittoheads extolling originalism’s great contribution to the rule of law, which at least connects originalism’s (putative) method with a predictable, expected result of the method. Posited law, interpreted in light of its original meaning, promotes consistent application as well as widespread public understanding and acceptance. It also makes clear what must be done when the “original meaning” no longer suits the needs of the day: i.e., new legislative enactments or constitutional amendments.

But the idea that “originalism” promotes democracy is a new one. Democracy, as we ordinarily understand the term – as, indeed, one might say the term ought originally to be said to have meant – normally refers to the people’s involvement in how they are governed. I see no appreciable connection between originalist methods of constitutional or statutory interpretation and democratic values. While I am glad for its protections, I certainly didn’t vote for the First Amendment, nor did I vote for those who enacted the Sedition Act of 1798, so I don’t see how an originalist parsing of the First Amendment or a gloss inspired by the contemporaneous enactments of its framers promotes my involvement in how I am governed – whatever we might more defensibly say about “rule of law” values.

Originalism is not designed to promote democracy, and there’s no reason to say that it does so particularly well, or is really “animated” by such an end. “Living constitutionalism,” whatever its faults, certainly tracks more clearly the will of the people, to the extent our Federalist Society colleagues care about such things. Originalist interpretations promote the interests of the original enacters and their constituents. But they have no right to rule over me.

Originalism is faithful to the nature of the Constitution and its text.

This is an utterly stupid and circular statement. You might as well say that merely positing law requires an “originalist” construction of it. Nothing in the Constitution compels an originalist method for interpreting it. Indeed, it’s hard to take it seriously as an originalist document, rife as it is with gaps, generalities, and amendments whose literal application all too easily would imply absurdities our courts had to quickly rule out.

It is certainly true that the nature of the Constitution – of any written constitution, really – was to set forth some basic ground rules that it was expected future generations would follow in good faith. Those ground rules require consistent respect and application for them to be meaningful. But you cannot really read the document – considering, say, the way that the Commerce Clause was supposed to interact with the N&P Clause – and think that it was some precise pedantic exercise in semantics. The Founders gave us a sketch, and left it to us to fill in the blanks. And lo, in the centuries since, we have found a reasonably stable way of interpreting it, even if at times the textual link has been more tenuous than Federalist Society auto-fellators might have preferred.

Originalism is part of our law and promotes the rule of law.

“Part of” being, I suppose, an essential hedge. Because of course nothing in our law properly endorses originalism simpliciter, nor could it. You find, in the cases, originalist interpretations, and then glosses on those interpretations, and extensions further of those. For every case featuring close reading of the phrase “well regulated militia,” there must be a hundred inferring things from the “structure” of the Constitution, combining constitutional rights in a queer constitutional alchemy to produce something new, or engaging in other shenanigans. For example, I work in an area of law that sprung up due to a statute that is about half a century old, where your statutory right to sue (and what you can sue for) is often determined by a reference back to Blackstone. A (relatively) modern body of law, glossed by ancient common law treatise, applied to modern situations that would have been unfathomable even twenty years ago. If there is any “originalism” involved, it is buried, deep.

Besides which, even otherwise “originalist” arguments need to be strung together with something more than dictionary cites – often, as practiced, with thoroughly unconvincing and incoherent reasoning. Just see Barnett’s attempted reductio claiming that the Commerce Clause couldn’t be interpreted to require people to enter into “commerce,” because doing so was supposed to read out of the enumerated powers their enumeration, or the Fifth Circuit’s bizarre discovery both that the ACA was unconstitutional in its entirety due to a zeroed-out tax that was, nonetheless, sufficiently harmful as to give states standing to sue on their constituents’ behalf.

The truth is that originalism was never a serious method or school of thought. It was invoked to provide some plausible intellectual basis – like Reaganomics for Republicans – to support a partisan attack on a perceived intellectual hegemony. The crisis of faith originalists now seem to be having, even when their primary goals seem to be closer to fruition than they have ever been, is just a classic case of the dog catching the car. They are shifting their intellectual commitments just as it is becoming clear to them that the farce is no longer needed. Now, conservatives simply have the power to declare whatever rules of law they might happen to prefer. Rule of law values? Gone with the Court’s endorsement of SB 8. Democracy? Gone with the Court’s continuing attack on the Voting Rights Act, abdication of responsibility to constrain partisan gerrymandering, and enthusiasm for granting state legislatures plenary power to disregard election outcomes. Original meaning? Watch as they read the Establishment Clause out of the First Amendment, so as to create more space for the Free Exercise Clause.

Originalists no longer believe in originalism because a principled commitment to originalism would constrain their power. Now is not the time for intellectual modesty, in their view. Now is the time for rule.

[David Nieporent]

Setting aside Scalia’s own polemic, here’s how the author describes “originalism”‘s “animating principles” (which – it must be noted – is a strange formulation in itself: is originalism an ideology, or is it a theory of constitutional interpretation? Why does a putatively anodyne manner of resolving questions of interpretation require animating principles?):

You’re being silly; it’s both. Originalism is both an interpretative methodology and the view that this is the appropriate interpretative method to use.

[Stephen Lathrop]

And—wonder of wonders—in the view that it is the appropriate interpretive method there is nothing to explain how the method actually creates superior interpretations. Superiority is merely implied by encomiums praising the results.

SimonP has written an especially clear cautionary essay, one calculated to give would-be originalists in their own accustomed terms reasons to be cautious about using that method. My hat is off to him. His approach is notably better than mine, which perforce insists that originalists pay attention to styles of thought they mostly never encounter, and may not even suppose to exist.

[David Nieporent]

in the view that it is the appropriate interpretive method there is nothing to explain how the method actually creates superior interpretations.

Sure there is. You not understanding them doesn’t mean they don’t exist.

[Sarcastr0]

It’s also a political shield for embracing unpopular things, and a political sword for attacking everyone who doesn’t agree with you.

You can think you’re right proclaiming everyone else is illegitimate. It’s a low bar, but Baude’s generally better at that than many of his colleagues.

[Rev. Arthur L. Kirkland]

Until strong law schools — beyond a few token right-wingers striving for relevance and citing each other relentlessly in downscale, separatist conservative journals — begin to take originalism seriously . . . let’s dance!

[David Nieporent]

Hey, my own justified smug sense of superiority is all _I_ need for attacking everyone who doesn’t agree with me.

But I didn’t say that originalism couldn’t be wielded for other purposes also; I was just answering Simon’s question about which of those two options it was.

[Sarcastr0]

And I wasn’t contradicting you 😛

[Michael D]

Question: can this question be put to rest with an amendment defining how courts shall interpret the Constitution? For example, one could define its interpretation following Bastiat’s work, thusly:

“This Constitution, and the laws of the United States which shall be made in pursuance thereof; shall adhere to and be interpreted as the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces and this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each.”

[Stephen Lathrop]

To make sure the issue stays at rest, also stipulate that natural rights will rely for their vindication solely on nature. You don’t want a lot of back-and-forth over what, “protect,” means when you rely on government to do it.

[Noscitur a sociis]

Can you give an example of a currently-disputed issue that you think this amendment would conclusively resolve?

[Alan Vanneman]

“Originalism protects democracy by preserving the will of the people as articulated in the Constitution and its many amendments.”

The “people” who approved the Constitution did not include any women or Indians or poor people, and only a handful of wealthy blacks in the free states. In Virginia, the largest state, 40% of the population was enslaved. The “will of the people” expressed in the 13th, 14th, and 15th amendments were “rammed through” by a victorious North. The “Progressive Amendments” were the only major modification to the Constitution made not during a time of crisis.

The Constitution itself was often a simple “split the difference” compromise, engaged in to simply get all 13 states into the Union, without any “objective” justification. James “Father of the Constitution” Madison, for example, was strongly opposed to the “equal representation” accorded to the states in the Senate, but only acceded to it because otherwise the Union would have failed. As is egregiously clear today, the Senate has become increasingly “undemocratic”, which is why “originalists” insist that the Constitution must be followed via every jot and tittle. Because they are afraid of democracy. They hide behind the impossibly demanding amendment process, which “even” Justice Scalia acknowledged makes impossible any significant revision of the Constitution. And there is no health in them.

[Stephen Lathrop]

The “people” who approved the Constitution did not include any women or Indians or poor people, and only a handful of wealthy blacks in the free states.

Alan, I doubt you can document that. In particular, do you know of any blanket colonial bar to the enfranchisement of poor people? Keep in mind that in the colonies it was commonplace for poor people to be landowners. Frontiers were close at hand, and near the frontiers land was cheap, or sometimes freely acquired just for squatting.

[captcrisis]

Originalism’s great advantage is that, once adopted as a judicial philosophy, the Court doesn’t have to bother looking up precedent. The 2051 Court’s idea of what was originally meant by the Framers is not to be influenced by the 2036 Court’s idea, which in turn was not to be influenced by the 2021 Court’s idea.

[Alpheus W Drinkwater]

The 1788 idea of what was originally meant didn’t seem to match what the 1798 idea was either.

[Alpheus W Drinkwater]

Or hell, Alexander Hamilton changed his mind as to who had the power to remove Cabinet members between the time he wrote the Federalist Papers and when he was being confirmed as Treasury secretary. That was only about 18 months or so.

[captcrisis]

Indeed. If you didn’t care about doing actual work in law school, if after 30 years on the Court its precedents still strike you as a complete surprise, well then . . . originalism is the way to go.

[CJColucci]

Originalists, of whatever stripe, are blind men looking in a dark room for a black cat that isn’t there. Leaving aside the epistemological point about the difficulty of reconstructing some sort of consensus about what the Constitution meant at the time it, or any later amendment under consideration, was adopted — a big enough problem — it’s pretty clear that on most litigable issues, there was no such consensus at the time.
Some issues are easy. The President must be at least 35 years old when inaugurated. Easy, and, therefore, never litigated. But the President must also be a “natural born citizen.” Clearly Arnold Schwarzenegger or Jennifer Grantholm aren’t eligible. But what about Lowell Weicker, John McCain, or Ted Cruz? If we could reconstruct an original meaning, then of course we should follow it in the absence of some compelling reason not to. Or is agriculture or manufacturing “commerce”? Anyone who digs into the available material has to conclude that the Founding generation was fundamentally divided. It’s not that we can’t now reconstruct a consensus; there never was one.
Here’s an experiment for you. Remember the Federal Marriage Amendment? It didn’t pass but it was widely debated at the time, which wasn’t long ago, and all the evidence is still around. It was always obvious that if it passed the first issue that would require litigation would be the status of civil unions. The was no consensus on this, the most obvious and pressing issue that would have to be decided. Even its authors disagreed. If the originalist project would have failed there, how likely is it to succeed elsewhere?