Debates about the use of history in constitutional interpretation find their primary nourishment in the originalism debate. This has generated a vast amount of literature, but also narrowed the terms of the debate. Originalism is a normative commitment wrapped in a questionable methodological confidence. Regardless of the multiple forms originalism takes, originalists are confident that the meaning (in the sense of intention) that animated the framing of the Constitution can be ascertained and, indeed, that they can ascertain it. The debate has largely focused, then, on whether modern-day scholars and jurists can ascertain original historical meaning or, alternatively, whether they have gotten the history right in attempting to do so.
Outsourcing the Law: History and the Disciplinary Limits of Constitutional Reasoning,
84 Fordham L. Rev. 957
Available at: http://ir.lawnet.fordham.edu/flr/vol84/iss3/4