This chapter outlines the challenges that current political polarization presents for constitutional law and judicial authority. Over the past fifty years, US politics have polarized, producing close political competition between two ideologically defined national parties that view each other with fear and distrust. This polarization has encouraged political actors in Congress and the federal executive branch to take legally aggressive positions and prioritize substantive policy achievements over adherence to good-governance norms or even constitutional restraints. At the same time, polarization has generated rival constitutional visions, and aligned slates of judges, that aim to advance partisan goals through constitutional interpretation. This environment poses risks for both judicial authority and constitutional law, because the public may lose trust in courts as neutral arbiters of constitutional disputes if it perceives them as wholly political institutions.

The jurisprudential tradition that created the original methods that were in effect at the time of the Constitution provides the foundation for an interpretive approach for applying the Constitution’s fixed text to changing circumstances. Across the centuries, even commentators with strong preferences for following the lawmaker’s original meaning have recognized that there are legitimate times for judges to adapt an old law to fit new circumstances. In light of that history, this chapter describes a principled approach to adapting laws to changing circumstances that has its foundation in Edward Coke and William Blackstone, and was developed over the centuries in the UK courts.

Nearly all of our current debates over constitutional interpretation have happened before, including those involving complex insights from linguistics, philosophy, and history that feel very modern to us. This book, while not intended to be a complete account of judicial decision making, has focused on what it has meant to interpret a legally authoritative text for many generations, and has shown how that traditional definition of interpretation maps onto the creation and interpretation of the US Constitution. It argues that constitutional theory needs to pay considerably more attention to the one constant theme through the various cycles of interpretive methods over the centuries: a search for the will of the lawmaker.

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.

The Epilogue shows the conclusion of the constitutional conflict over slavery. As the North was poised to exert control over all three branches of the federal government, Southerners called for additional safeguards in the form of constitutional amendments. Americans from all walks of life participated in the constitutional conflict over slavery. They read the Constitution. They made their own interpretations of its provisions. And they acted on their constitutional beliefs by supporting secession, compromise, or coercion. Once the constitutional conflict over slavery became a shooting war, they volunteered by the tens of thousands to take up arms and fight for their understanding of the Constitution. In the end, the Civil War afforded the North the opportunity to realize the Constitution’s antislavery potential. In short order, Congress passed and the states ratified the Thirteenth Amendment (1865), which abolished slavery, and the Fourteenth and Fifteenth Amendments (1868 and 1870), which compelled the states to recognize the rights of their African-American citizens. After the Civil War, the Founders’ Constitution was no more. In its place is the living Constitution that Americans have been expanding upon and improving ever since.