First Page
217
Abstract
There are many theories of constitutional interpretation. Most, but not all, assert that, in interpreting the U.S. Constitution’s provisions, we should start by taking seriously the intentions of the enactors, meaning, roughly speaking, its drafters, defenders, and ratifiers. This Article argues that, in doing so, judges, scholars, and policymakers have underestimated an important feature of the process of constitution-making: the discontent of the enactors themselves with the Constitution they were enacting. Time and again, during the Philadelphia Convention of 1787, during the penning of the Federalist Papers, and during the state ratifying conventions, the enactors expressed deep reservations about the structure and substance of the draft Constitution. They worried it would lead to anarchy and tyranny. They worried it would enshrine injustice into the policies of the new nation. And they worried it would foment civil conflict and violence. These were not mere quibbles, the ordinary outcome of the messy process of compromise and negotiation. Their discontent went to the very foundation of the Constitution. In short, many founders believed that the Constitution they created was not, in fact, good law.
This Article argues that “original discontent”—that is, the discontent of the enactors with the Constitution they were creating—is both underestimated and essential for understanding our Constitution. Original discontent carries important implications for many of the most common methods of constitutional interpretation. For originalists, it suggests that we should take the public statements of proponents of the Constitution for what they were: more propaganda than heartfelt statement of belief. For living constitutionalists, it suggests that even if we accept that judges should interpret the Constitution as laying down broad principles subject to evolving norms and moral beliefs, we must recognize that the founders were skeptical of those basic principles. For common good constitutionalists, it provides essential context about the original understanding of the Constitution and its effects on the nature of the political community
Recommended Citation
William Magnuson,
Original Discontent,
78 Vanderbilt Law Review
217
(2025)
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol78/iss1/5
