1 - The Framers and Contemporary Constitutional Theory

Summary

The nation’s Founders have tremendous public appeal, and advocates of originalism, such as Justice Antonin Scalia, and the living Constitution, such as David Strauss, have invoked the Founders for support in their arguments for interpretive methods that nevertheless leave the Framers out of the picture. As a result, American constitutional theory has increasingly shifted its focus away from the lawmaker’s intentions. To provide a sound basis for the process of interpretation, constitutional theory needs to return to its historical core, which is an understanding of the decision made by the lawmaker in adopting the text. As a practical matter, determining that original choice will require an inquiry into the Framers’ understandings as shown in the record of the drafts and debates.