With the new Supreme Court nomination, originalism is likely to be back in popular commentary as it was during Justice Gorsuch’s confirmation.  I hope to use this time to highlight the arguments against originalism and separate the good ones from the bad ones.  In particular, I want to highlight the bad ones, in the hopes that originalist critics will give up on them, and find meaningful points of engagement.

So let’s start with this one: originalism depends on the framers all agreeing on everything.  Here’s Donald J. Fraser at the History News Network: The Founders Would Not Recognize Originalism—Why Should We?  (Thanks to Andrew Hyman for the pointer).  Key claim:

The inability to recognize the extent to which the Founding Fathers argued among themselves is a major flaw in the conservative case for originalism since it is dependent on the theory that people in the 18th century shared a common interpretation of the Constitution. In fact, they did not, as one of the earliest debates over the meaning of the Constitution shows.

[There follows an engaging description of the Hamilton/Jefferson/Madison debate over the national bank].

Fraser’s claim is fundamentally misconceived on two counts.  (Before getting to them, though, I’ll start by saying that claiming originalists don’t recognize the post-ratification disputes over constitutional meaning is either lazy or dishonest.  Originalist scholarship routinely engages with these debates, and anyone who thinks otherwise either hasn’t read the relevant literature or is deliberately misstating it.  To pick just a couple of examples beyond the bank debates, Hamilton and Madison famously debated executive power in the Pacificus/Helvidius letters in 1793 [Saikrishna Prakash and I wrote about that debate here, as have many others], and the Federalists and Republicans famously debated the constitutionality of the Jay Treaty in 1794-95 [I wrote about that debate here, as have many others].  The idea that originalist scholarship does not acknowledge these debates is wholly unfounded.)

The existence of these debates (which nobody disputes) does not undermine originalism for at least two core reasons.

(1)  Originalism does not claim that “people in the 18th century shared a common interpretation of the Constitution” as to all matters.  It claims that to the extent that people in the 18th century shared a common interpretation of the Constitution, that interpretation should be binding.  Citing the bank debate (or Pacificus/Helvidius, or the Jay Treaty, or any of a number of other debates) does not show that the founding generation had no common interpretations; it only shows that there were disagreements on some important matters (a point that, again, no one disputes).

On other matters, though, the founding generation seems to have been largely in agreement.  To take one I’ve studied a bit, there appears to have been a general consensus, at least among leaders who commented on the matter, that Congress had the exclusive power to initiate war.  Hamilton, Madison, Washington, Jay, and a numbers of others agreed, and there’s no material post-ratification commentary to the contrary.  (See Chapter 8 of The Constitution’s Text in Foreign Affairs).  This is notable because (a) that’s not obvious from the text, which only gives Congress the power to “declare War,” and (b) in modern commentary this power is disputed.  Originalism says that the founding generation’s common understanding should resolve this issue.  The fact that the founding generation did not agree on other things is irrelevant to whether one accepts as binding their common understanding on this one.

(2) Orignalism also does not require proof of a “common interpretation” (which I take to mean a near-consensus interpretation) in the post-ratification era to establish constitutional meaning.  That is so for three reasons.  (a) Mainstream modern originalism focuses on original meaning of the text, not the original intent of the framers.  Thus the inquiry is what the enacted text meant, not what particular framers, or the framers collectively, thought it meant (though their understandings are of course relevant). (b) Post-ratification reactions to the text must be treated carefully.  Once the text was enacted, commentators and political leaders had incentives to read it in a way that favored their institutional, political and ideological commitments.  Both Jefferson and Hamilton, for example, had personal reasons to read the Constitution as they did in the bank controversy.  They were not neutral readers. (c) Originalism does not claim that there is only one possible meaning of each constitutional phrase.  It recognizes ambiguity, and attempts to resolve ambiguity by finding the most likely meaning in the founding era.  The fact that people in the post-ratification era disagreed on meaning may show ambiguity, but it does not necessarily show irreducible ambiguity.  In the modern era lawyers routinely disagree over the meaning of phrases in statutes, contracts, wills, etc., but that does not mean judges cannot reach conclusions about their meaning.

Putting this all together, originalist scholarship routinely examines debates from the post-ratification era and concludes that one side had the better argument as to the text’s meaning.  For example, Professor Prakash and I concluded that Hamilton had the stronger textual arguments in the Pacificus/Helvidius debates, at least on the question whether the President had some independent power in foreign affairs.  We also noted that Madison’s contrary view was somewhat undermined because he had expressed a different view earlier, and that Hamilton’s view was consistent with other key interpreters such as Washington and Jay.  We did not ignore the post-ratification debate, but we concluded there nonetheless was an originalist answer.  Similarly, I examined the Jay Treaty debates and concluded that the Federalist position (that the treaty power could reach topics not covered by Congress’ enumerated powers) was the correct — or at least the most plausible — one; while Republican leaders disagreed, their arguments lacked foundation in the text, seemed logically incoherent, and appeared to be motivated by political opposition to the treaty.  (For what it’s worth, I also think Hamilton was right on the bank controversy, though I acknowledge it’s a closer question).

None of this means that we must today follow the Constitution’s original meaning as to initiating war, presidential foreign affairs power, or the scope of the treaty power.  (All of the scholarship I’ve cited makes clear that that’s a separate question).  But it’s not helpful, in addressing that question, to pretend we cannot find original meaning.  Concededly, we can’t always find it.  But sometimes, perhaps often, we can.  And the fact that the framers sometimes disagreed in the post-ratification era doesn’t mean we can’t.

This conclusion also leaves two important open questions.  The first is: for how many issues can we find a reasonably determinate original meaning?  If the answer is “some, but not many,” then originalism may not have much practical significance. However, even if original meaning leaves many issues unresolved, that is not an argument for ignoring it as to issues it does resolve.  The second of these questions is: how should judges decide if original meaning does not resolve an issue?  That’s a complicated question, but it’s worth considering that the answer might be: they should leave the matter to the political branches.  That is, showing that original meaning can’t provide answers in some cases does not mean that judges are thereby free to develop their own answers.

NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

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