Our Improbable Constitution

Abstract

This essay deals with several problems raised by the currently prominent mode of constitutional interpretation that relies on original public meaning, textualism, and history and tradition. Beginning with issues that stem from the text of the Constitution itself and the historical circumstances surrounding its conception and adoption, the essay explains that from the start the Constitution would be a difficult document to interpret. A real novelty in the world of government and law, it was also highly enigmatic in a manner that not only permitted but required judicial construction.