Above: II’s Senior Fellow in Constitutional Jurisprudence at James Madison’s home in 2007.
by Rob Natelson
The scholarly journal Federalist Society Review has just published my article Applying the Founders’ Originalism. You can find it here.
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.
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Author’s Note (5/4/2026): Lawyers in the founding generation universally believed that legal documents, including the Constitution, should be construed according to the “intent of the makers.” I recently came across an additional example of this: In May, 1791, James Wilson, a delegate to the Constitutional Convention and leader of the ratification forces in Pennsylvania, was serving as a Supreme Court justice. The justices then had trial responsibilities, and in the course of those duties he issued a lengthy charge to a grand jury. “This question may be divided into two subordinate ones,” he said. “1. Was it the intention of the legislature, that this law should extend, in its operation, to persons not citizens of the United States…..”. James Wilson, A Charge Delivered to the Grand Jury in the Circuit Court of the United States for the District of Virginia, in May, 1791, in 1 Collected Works of James Wilson 320, 333 (Kermit Hall & Mark David Hall, eds., 2007).
