This paper begins by critiquing originalism as inconsistent with the Founders' desire for the Constitution to be understood as an integrated document. We analyze a debate during the First Congress on how to add amendments into (or onto) the Constitution. Roger Sherman proposed adding amendments to the end of the Constitution as appendices, while James Madison favored producing a new constitutional text with amendments interwoven in it. Sherman lost the vote on the issue and then threatened to derail the Bill of Rights if the House did not change its mind. Madison begrudgingly accommodated Sherman, not knowing it would forever change constitutional history.
The appendative model of amendment, when coupled with originalism, transforms the Constitution into 19 different documents: a main text adopted in 1788, a Bill of Rights ratified in 1791, and 17 subsequent amendments with ratification dates between 1795 and 1992. This atomization of the Constitution allows originalists to construct the meaning of a constitutional provision by focusing on only one of these years. An inevitable consequence of this methodology is the perpetuation of inequality. For example, the Supreme Court's originalist analysis in Dobbs v. Jackson Women's Health Organization is too clever by half. Turning back the clock to 1868 to determine the meaning of the Fourteenth Amendment creates an originalist fait accompli. One should not be surprised to find that women lacked abortion rights at a time when they enjoyed no constitutional rights whatsoever.
If originalists took seriously the sincere preferences of the First Congress, any inquiry into abortion rights would consider the Fourteenth Amendment, not in isolation, but in concert with all subsequent constitutional, statutory, and common law developments affecting women's rights. Using this methodology, there is no single moment in time from which to conduct a historical analysis, and the utility of originalism implodes.
The appendative model of amendment, when coupled with originalism, transforms the Constitution into 19 different documents: a main text adopted in 1788, a Bill of Rights ratified in 1791, and 17 subsequent amendments with ratification dates between 1795 and 1992. This atomization of the Constitution allows originalists to construct the meaning of a constitutional provision by focusing on only one of these years. An inevitable consequence of this methodology is the perpetuation of inequality. For example, the Supreme Court's originalist analysis in Dobbs v. Jackson Women's Health Organization is too clever by half. Turning back the clock to 1868 to determine the meaning of the Fourteenth Amendment creates an originalist fait accompli. One should not be surprised to find that women lacked abortion rights at a time when they enjoyed no constitutional rights whatsoever.
If originalists took seriously the sincere preferences of the First Congress, any inquiry into abortion rights would consider the Fourteenth Amendment, not in isolation, but in concert with all subsequent constitutional, statutory, and common law developments affecting women's rights. Using this methodology, there is no single moment in time from which to conduct a historical analysis, and the utility of originalism implodes.