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Over the past twenty years, constitutional law has taken a decidedly historical turn, both in academia and in the courts. The U.S. Supreme Court’s constitutional decisions are increasingly filled with extended historical inquiries, and not just by self-described originalists. Yet much of this historical inquiry is severely distorted. Twenty-first-century lawyers and judges enjoy improved and ever-widening access to a rich array of primary sources from the founding era and the early republic, but the ability of modern interpreters to make sense of these materials is pervasively affected by present biases. Many of these biases stem directly from long-standing received narratives of constitutional meaning. Every generation of constitutional interpreters since 1787 has indulged to some extent in the American penchant for linking present-day intuitions to the minds of the founders. This does not necessarily make us “all originalists now,” but it does tend to make every generation’s interpretive narrative—whether from James Madison in 1830, Roger Taney in 1857, Robert Jackson in 1942, or Clarence Thomas in our own day —into an origin myth.


Originally published in the Fordham Law Review