This paper critiques originalism as being inconsistent with Founding desire for the Constitution to be understood as an integrated document. We highlight a debate in the House of Representatives during the first Congress over how to integrate constitutional amendments. Roger Sherman proposed to add amendments to the end of the Constitution as appendices, while James Madison favored interweaving amendments into the existing text. Sherman lost the vote on the issue and then proceeded to threaten to oppose the Bill of Rights if the House did not revisit the issue. Madison begrudgingly accommodated Sherman, not knowing it would forever change constitutional history.
The decision to adopt an appendative model of amendments means that the Constitution is really 19 different documents: a main text adopted in 1788, a Bill of Rights ratified in 1791, and 17 susbequent amendments with ratification dates between 1795 and 1992. This atomization of the Constitution allows originalists to construct the meaning of a constitutional provision using one of these 19 different years as a guidepost without ever considering how each amendment creates a new constitutional reality.
For example, it seems far from obvious that 1868 provides any useful insights about privacy or abortion rights. It is too clever by half for the Court to conclude that women lacked abortion rights at a time when they enjoyed no rights whatsoever. If the sincere preferences of the First Congress had prevailed, any inquiry into abortion rights would have to consider not just the meaning of the Fourteenth Amendment but all subsequent amendments and common law developments affecting women's rights. From that perspective, an originalist cannot identify a single moment in time from which to conduct a historical analysis, and the utility of the theory implodes.
The decision to adopt an appendative model of amendments means that the Constitution is really 19 different documents: a main text adopted in 1788, a Bill of Rights ratified in 1791, and 17 susbequent amendments with ratification dates between 1795 and 1992. This atomization of the Constitution allows originalists to construct the meaning of a constitutional provision using one of these 19 different years as a guidepost without ever considering how each amendment creates a new constitutional reality.
For example, it seems far from obvious that 1868 provides any useful insights about privacy or abortion rights. It is too clever by half for the Court to conclude that women lacked abortion rights at a time when they enjoyed no rights whatsoever. If the sincere preferences of the First Congress had prevailed, any inquiry into abortion rights would have to consider not just the meaning of the Fourteenth Amendment but all subsequent amendments and common law developments affecting women's rights. From that perspective, an originalist cannot identify a single moment in time from which to conduct a historical analysis, and the utility of the theory implodes.