Once upon a time, it was common to respond to originalist arguments in constitutional interpretation by arguing that even the framers themselves were not originalists. And if they were not, how could or why should we be?  Exhibit A for this argument was H. Jefferson Powell's The Original Understanding of Original Intent, which pointed to many places that prominent framers had denied that their own subjective intent was dispositive of the document's true public meaning.

This Exhibit worked against "original intent" originalism, but as originalist thought became more careful and rigorous, most originalists came to agree that original meaning was controlling, not original intent. In other words, today's originalists share the position of the framers in Powell's article, so there was no mismatch between originalism and the framers.

But now along comes an important and fascinating new book from Jonathan Gienapp, The Second Creation, which threatens to pose a new and deeper version of this problem for today's originalists. In Gienapp's telling, the framers did not agree that the Constitution was a written legal text, that it was complete, that its meaning was fixed, or that it was subject to specific rules of legal interpretation. All of these things were subject to contestation throughout the 1790s. The emergence of the fixed, written, legal Constitution emerged only contingently and years after the Founding.

If Gienapp is right, what are originalists to make of it? As Jack suggests in his earlier post, the answer may depend on why one is an originalist in the first place.

Read more at Balkinization