"Lepore said her book, We the People, is also a deep historical critique of originalism, the conservative legal theory that dominates the supreme court, deep political polarization having rendered constitutional amendments all but politically impossible. Among originalists, only the views of those who wrote the constitution in Philadelphia in 1787 should be used to divine constitutional meaning, even 250 years later in a country of cars, planes, automatic weapons, AI, rights for women and minorities and all the founders did not know."
"But among the more simplistic versions of originalism is the insistence that this is how the constitution was written and was meant to be read from the very beginning: that you can only refer to James Madison's constitution itself, Madison's notes, the notes of the ratifying convention, the Federalist Papers, and that's pretty much it. Madison's notes, like everyone else's notes, were not published until 1840. He died in 1837."
The U.S. Constitution functions as a living document designed to be amended by each generation. Originalism asserts that interpretive authority rests solely with the framers' views and contemporary 1787 sources. Simplistic originalism restricts permissible references to Madison's constitution, Madison's notes, ratifying convention debates, and the Federalist Papers. Key framers' notes were unpublished for decades and were kept secret; ratifying debates were incompletely recorded; the Federalist Papers had limited early circulation and influence outside New York. Reliance on those sources as a definitive original meaning is historically unreliable, especially given technological, social, and rights developments unknown to the founders.
Read at www.theguardian.com
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