Originalism has become a Federalist Society word. That’s a problem. Not because the Federalist Society is wrong about constitutional interpretation, but because reducing a civic practice to a judicial philosophy makes it sound like something that belongs to lawyers. It never did.
The founders weren’t writing for law reviews. They weren’t writing for federal judges. They were writing for citizens — specifically for the citizens of 13 newly independent states who were being asked to ratify a new frame of government and who needed to understand what they were authorizing. The Federalist Papers were newspaper op-eds published under pseudonyms in New York newspapers between 1787 and 1788, addressed to general readers making a political decision. Madison, Hamilton, and Jay weren’t producing a treatise for posterity. They were trying to win a ratification vote.
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That context matters more than most commentary acknowledges. Originalism isn’t a conservative judicial theory invented in the 1980s. It’s the logical consequence of what the Constitution is: a ratified compact, authorized by citizens who understood its words to mean something specific. If those words meant what the ratifiers understood them to mean, the document means what they thought. If they mean whatever the current court decides, the ratifiers didn’t authorize a constitution — they signed a blank check payable to nine lawyers appointed for life.
THE CONSTITUTIONAL SLAVERY EXCEPTION NOBODY TALKS ABOUT
I’m a financial professional, not a lawyer. Thirty years of institutional investment management makes the distinction between what a contract says and what one party later claims it says second nature. The tools used to stretch contractual meaning in financial litigation — selective quotation appeals to “spirit,” arguments from changed circumstances — are identical to the tools living constitutionalists apply to the Bill of Rights. They’re no more persuasive in constitutional law.
The living Constitution theory has surface appeal. The founders couldn’t have anticipated the internet or a government employing nearly 3 million civilians. But applying old text to new circumstances requires judgment — it doesn’t require that nine unelected judges hold that authority. That’s the question the living-Constitution theory sidesteps.
The mechanism for that reinterpretation is visible in Griswold v. Connecticut (1965), where Justice William O. Douglas located a right to marital privacy in the “penumbras, formed by emanations” of the Bill of Rights. Roe v. Wade (1973) extended that implied right to abortion. Dobbs overruled Roe not because the justices dislike abortion but because the Constitution contains no such right. A settlement that rested on nothing more than five votes lasted five decades. Then it didn’t.
The founders anticipated this problem. They built Article V precisely because they knew the Constitution would require updating, and they wanted that updating to go through the people rather than through the courts. The amendment process is deliberately difficult — two-thirds of both chambers of Congress and three-quarters of the states — because constitutional change should be harder than ordinary legislation. That difficulty is a feature. A constitution that can be amended by judicial reinterpretation is not a constitution in any meaningful sense. It’s a set of suggestions subject to revision by whoever controls the federal judiciary.
None of this requires a law degree to understand. The Declaration of Independence held that governments derive their just powers from the consent of the governed. A government whose fundamental law means whatever its judges say it means has, in the relevant sense, departed from that principle. The citizens who ratified the Constitution didn’t consent to unlimited judicial revision of the document they were authorizing. They consented to specific text with specific meaning, subject to amendment through a specific process.
Originalism, understood this way, isn’t a conservative judicial philosophy. It’s constitutional literacy. Liberals can be originalists. Progressives can be originalists. Anyone who believes the Constitution means what the people authorized — not what judges prefer — already is one.
THE DUE PROCESS CLAUSE NOBODY READS
The debate between originalism and living constitutionalism is not primarily a debate about outcomes — about whether abortion is permitted, or guns are protected, or the administrative state is constrained. It’s a debate about who decides. The founders answered that question clearly. The people decide, through the Constitution they ratified, and the amendment process they established. The courts apply the law that the people made.
That’s not a conservative position. That’s the republic as designed.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a Bachelor of Science from Northeastern University and has completed postgraduate studies at UCLA, the University of Pennsylvania, and Harvard. He writes about issues in finance, constitutional law, national security, human nature, and public policy.
