Reply To: History and Constitutional Debate


A long list of Founding Fathers said that the Constitution was to be read according to the original understanding — the reading that the people gave it when they agreed to live under it. They said this in different ways, my favorite being James Madison’s statement that the meaning of the Constitution was to be found in the ratification conventions.

If we are to have a government by the consent of the governed, the government must be the one to which the people consented. If it is impossible to have such a government, the solution is not to say, “So the judges can do whatever they want,” but to say, “So the British were right: the legislature is sovereign.” Most people who say that constitutional meaning cannot be identified intend by saying that to pave the way for free-wheeling policy-making by judges, which seems to me to be a grand non sequitur — besides a sort of coup de regime.