Original Discontent

• Published in: Vanderbilt law review Vol. 78; no. 1; pp. COV1 - 280
• Main Author: Magnuson, William
• Format: Journal Article
• Language: English
• Published: Nashville Vanderbilt University, School of Law 01.01.2025; Vanderbilt Law Review
• Subjects: Analysis; Constitutional history; Constitutional law; Dictionaries; Evaluation; Federalism; Judicial restraint; Laws, regulations and rules; United States > US
• ISSN: 0042-2533; 1942-9886

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.