Two problems with originalism

When it came to the question of how to interpret the Constitution, there was general agreement on a kind of conventional approach that mixed different arguments without much systemization-something very much like the mix of arguments lawyers use when interpreting statutes or common law.4 The Framers intent was one of these arguments, used alongside text, precedent, and policy, but not superior to them.5 The idea of originalism as an exclusive theory, as the criterion for measuring constitutional decisions, emerged only in the 1970s and 1980s.6 The theory first appeared as original intent originalism, and it looked to what the fifty-five men who drafted the Constitution in Philadelphia intended when they framed the Constitution.7 That originalism first emerged in this guise is hardly surprising, given that the most readily available evidence about the origins of the Constitution's provisions consisted of notes from the Constitutional Convention collected in a neat four-volume set by Max Farrand.8 Consequently, a great deal of early originalist work asked what the Framers thought they were doing when they wrote this or that clause of the Constitution. Unsurprisingly, given the critique, originalism in its new guise evolved to focus mainly on the views of the ratifiers.12 It was, perhaps, more than serendipity that this second form of originalism emerged just as extensive material on ratification became easily available to legal scholars through the publication of the multi-volume Documentary History of the Ratification of the Constitution.13 Suddenly everybody could be an historian of ratification, because a vast reserve of primary sources were available in neatly bound volumes.