As we celebrate the Constitution’s 238th birthday, originalism is now the dominant approach — on the left and the right — to interpret the Constitution.
F ive decades ago, originalism wasn’t even an -ism. In the academy, at the bar, and on the courts, the Constitution was interpreted as a living, breathing document. Contemporary values mattered more than text, history, and tradition. Yet today, as we celebrate the Constitution’s 238th birthday, originalism is now the dominant approach — on the left and the right — to interpret the Constitution.
Even Justice Ketanji Brown Jackson said during her confirmation hearing, “I believe that the Constitution is fixed in its meaning” and that looking to “original public meaning” is “a limitation on my authority to import my own policy.” Still, critics charge that lawyers and judges, lacking Ph.D.s, are not qualified to perform historical research and that originalism is partisan and lacking in any sort of neutrality. These claims do not hold up.
For nearly five years, a coalition of 30 judges, 60 academics, and 60 practitioners united to assemble a definitive, comprehensive, and neutral statement about the entire Constitution’s original meaning. This ground-breaking research will be published in the fully revised third edition of the Heritage Guide to the Constitution. Justice Samuel A. Alito wrote in his preface that “the new edition of The Heritage Guide is a great place to start” for all Americans who “want to understand what our Constitution means.”
These judges, scholars, and advocates who contributed to this book teach us how to determine the Constitution’s original meaning in the right chronological order: the history before 1787; the records of the Constitutional Convention; the ratification debates; early practice in the legislative and executive branches; and finally, judicial precedent. More than 200 essays break down every clause of the Constitution through these five steps.
First, what were the origins of the text in the Constitution? Our Constitution was not written on a blank slate. Nearly every part of the Constitution was borne of experiences, both good and bad. Centuries of British law, developed by monarchs, parliaments, and courts, established the basis for our republic. After 1776, the independent states experimented with different forms of self-governance, some of which worked and some of which didn’t. And the 1781 Articles of Confederation, though ultimately not successful, still presented an early frame to craft a national government. All of this history informed the debates at the Constitutional Convention of 1787.
The second part of the originalist inquiry focuses on what the 55 delegates accomplished in Philadelphia to frame the Constitution. The records of the Convention are, admittedly, dense and hard to follow. But the Heritage Guide highlights the important threads in the debates by famous and less prominent Framers alike. Our authors trace how different versions of the text were drafted, modified, merged, dropped, and adopted by the Framers. This careful analysis brings to life why the Framers designed the Constitution the way they did. But the meaning of the Constitution is not limited to what the Framers said and wrote during that influential summer.
The third, and perhaps most important phase, was the ratification debates. Most students learn about the Federalist Papers, a series of 85 essays written in defense of the Constitution. But people forget that these were pieces of advocacy. James Madison, Alexander Hamilton, and John Jay were trying to sell people on the Constitution. They downplayed its problems and hyped its benefits.
To understand the Constitution, the Heritage Guide shines a light on the oft-forgotten Anti-Federalists, who accurately diagnosed problems that would come to light only years later. Moreover, the Heritage Guide recounts important debates in the state ratification conventions. These were the people who adopted the Constitution, so their understanding of the text should be paramount.
The Constitution was formally ratified in 1788, and the new government assembled in 1789. At that point, the fourth phase began. How did the early actors in our government understand the Constitution? The first Congress, which included many of the Framers, debated the powers of the legislature when deciding whether to pass bills. President George Washington and his administration set countless “first” precedents about the executive’s power, both at home and abroad. This early tradition provides one of the most reliable ways to interpret constitutional text. If you notice, we did not mention the courts here. Indeed, the Supreme Court had very little to say about the Constitution during these formative years.
The fifth inquiry, finally, turns to the courts: What have judges, especially on the Supreme Court, said about a particular clause of the Constitution? This choice was deliberate. Over the centuries, judges of all stripes have decided cases that are consistent, and inconsistent, with the Constitution’s original meaning. This sort of doctrine comes and goes. The Heritage Guide fairly describes the judiciary’s decisions but makes the conscious choice to do so last. We can hope that over time, the Court moves closer to the Constitution’s original meaning.
This five-step approach reflects originalist best practices that students, lawyers, and the judiciary should follow. The Supreme Court has often referred to the Constitution’s text, history, and tradition to understand the document’s original meaning. It is important to approach these inquiries in the right order.
Each essay is rich with history and tells a story, a uniquely American story, about why that particular clause was incorporated into the “supreme Law of the Land.” Our Constitution is the longest-lasting written constitution still in existence. The Heritage Guide will provide all Americans with an authoritative and accessible introduction to our foundational charter.
Josh Blackman and John G. Malcolm are co-editors of the fully revised Heritage Guide to the Constitution (Third Edition).