Originalism and Conservatism: An American Story - Lee J. Strang

It relies on the virtue of honesty: The oath-taker is committing to telling the truth about the Constitution, and that truth is the Constitution’s original meaning. [...] The Constitution’s original meaning is the product of the Framers’ drafting in the Philadelphia Con- vention and the ratifiers’ authorization in the state ratification conventions. [...] The real culprit in the narrative of judicial supplanting of state gover- nance is not incorporation of the original meaning of the Bill of Rights; instead, it is the living constitutionalist misinterpretations of the Bill of Rights and in particular the doctrine of substantive due process. [...] One of the most prominent such instances is Professor Vermeule’s claim that the phrase “general Welfare of the United States”145 in the Taxing and Spending Clause “is an obvious place to ground principles of common good constitutionalism” because of the clause’s “obvious semantic ambiguity.”146 A theory of interpretation of the United States Constitution in which the Constitution itself plays only. [...] For example, even though abortion had been regulated and largely prohibited since the beginning of the Republic, by 1973, the Constitution had changed to protect abortion157 because of the now-explicit and less- than-a-decade-old implicit right of constitutional privacy.158 Similarly, the Constitution changed over the course of the 20th century to authorize Congress to regulate intrastate non-comm.