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The Foreign Founding: Rights, Fixity, and the Original Constitution

Volume 97 Pages: 115-137
Texas Law Review Online
May 2019

Anyone today who wishes to understand the American Founding must first come to terms with a central fact: By our lights, it is a foreign world.  To properly understand how and what people thought back then requires considerable abstraction and conceptual translation. It demands a willingness to look beneath surface-level familiarity by attending to, rather than ignoring, strange and paradoxical evidence in order to recreate a largely hidden world of unfamiliar assumptions, ideas, distinctions, and logics. Only by recovering the foreign conceptual world of Founding-era Americans can we grasp the meaning of their constitutional expressions.

All of this is of special significance to the theory of constitutional originalism. For in insisting that the United States Constitution should be interpreted today in accordance with its original meaning, originalists place special burden on recovery of the historical past, especially the distant eighteenth-century past. Yet, despite the fact that most leading historians of the period have long emphasized how different and removed the Founding was from our own time, originalists have rarely engaged with the force of this insight, typically overlooking, misunderstanding, or dismissing it outright. These various reactions to historians’ arguments are driven by a common instinct. Whether claiming to heed historical guidance or proceeding happily unaware, originalists often interpret Founding-era thinking with a sense of familiarity—confident that the Founding generation more or less spoke and thought like we do today. This familiarity, however, is decidedly unwarranted. Even if the Founding generation’s constitutional expressions and arguments feature familiar words, which in many cases carried an identical semantic meaning as they do today, those words were set against a conceptual background distinct from our own. And familiar words, if strung together via unfamiliar conceptual relationships, can convey radically different constitutional ideas. By failing to grasp the Founding generation’s distinct conceptual vocabularies, many (though certainly not all) originalists have been prone to read the words of the Constitution as though they were set against a largely legible conceptual background. By unwittingly imposing modern assumptions on eighteenth-century words, originalists too often wrench eighteenth-century expressions into the present, silently transforming their meaning in the process. All of this is to say: There is no way to decipher the Constitution’s original meaning without first reconstructing the conceptual world of the eighteenth-century Founding; which, in turn, means there is no way to do originalism properly without first recognizing the foreignness of that conceptual world and engaging in the kind of historical immersion necessary to penetrate it.