Liberal academics have long tried to apply novel interpretive methods to the Constitution to get the results they want. As “originalist” methods have become more prevalent, some academics have responded by inventing new forms of “originalism” as well. My new article makes the obvious point that this kind of game-playing is unfaithful to the Constitution. The Founders wrote the document to be interpreted according to the methods with which they were familiar, and if they had known that different methods were to be applied, they would have written the document differently.

The article then relies on prior research to identify the Founders’ method. It is what is called today “original understanding originalism”—that is, it focuses on the understanding of the  constitution’s ratifiers. Only if that is not recoverable, would the Founders have resorted to what we now call “original public meaning.”

Most of the Founders were lawyers who had extensive backgrounds in non-governmental subjects like property, contracts, business, and trusts. For them, the interpretation of a constitution followed the same basic principles as the interpretation of a contract or a will—although, as Chief Justice Marshall pointed out in McCulloch v. Maryland, the principles might be applied somewhat differently.

Unfortunately, most modern writers on the Constitution have little, if any, background in non-governmental law. Fortunately, I do. The article provides a series of illustrations from real estate contracts—a subject familiar to the Founders and part of my law practice, teaching, and research for fully 30 years.