Even the Founders Didn’t Believe in Originalism

Originalism has reached great heights since it first came about in the 1970s as an obscure legal theory. Most current Supreme Court justices use originalism in their legal reasoning. Adherents believe that the Constitution has a fixed meaning and that it should be interpreted as it would’ve been back in the 1700s. Critics have made many compelling arguments against originalism, noting that it lends itself to a selective reading of history and that determining the Founders’ intent is nearly impossible.

But even where original intent can be known, the Framers likely did not want their views to control constitutional interpretation. Nothing indicates that the original meaning of the Constitution was to create judicial review or, if it was, that it was meant to create originalist judicial review. In fact, the evidence, including the Ninth Amendment, points to the contrary.

Following the original meaning of the Constitution therefore requires abandoning originalism as a method of constitutional interpretation. This, in short, is what I call the incoherence problem.

O about how courts should interpret the Constitution. That leads to an obvious threshold question: How did the Framers intend the courts to do this? Put another way, what was the original meaning of Article III—the section of the Constitution that creates the federal judiciary—in terms of how judicial review should be performed? This important constitutional question should be analyzed under