A Commonplace Book

Using fictive readers in place of actual historical ones effectively turns constitutional interpretation into an act of historical ventriloquism. The fictive readers imagined by new originalists somehow always seem to read the Constitution in exactly the same way that a modern right-wing law professor would read the document--a strange coincidence indeed! Even more remarkable is the claim made by some new originalists that we should not give any special weight to what people at the time actually said because, unlike new originalists, Madison, Jay, Hamilton, or any other actual person from that period would have had political motives. In their constitutional fantasy world, historical evidence cannot be used to impeach originalist claims because it would involve claims about actual practices by historical actors who were often blinded by their biases. By contrast, new originalists believe they have transcended their own political interests and created a methodology that reveals the objective meaning of the Constitution. Having cast the vast majority of Americans as idiots, and discounted the views of elites for their political biases, one might wonder what is left to the concept of original meaning. The answer is new originalist meaning ultimately has nothing to do with history: it is a modern ideology dressed up in historical clothing.

There is something deeply ironic about new originalism that its advocates have missed because they lack an understanding of Founding-era history. Focusing on the public meaning of the Constitution, the chief insight of new originalism, is really not new at all. Such an approach was championed by the Anti-Federalist opponents of the Constitution more than two hundred years ago. Following new originalist methodology would not lead to a restoration of the original meaning of the Constitution, but it would give us an Anti-Federalist Constitution that never existed. This is an odd result, given that the Constitution was largely written by Federalists and ratified by state conventions dominated by Federalist majorities, not Anti-Federalist minorities.