Publication Date


Document Type


First Page



[T]he available record simply does not support many of the conclusions that the new originalists reach about key constitutional provisions… . These conflicts are not simply matters of perspective and do not depend on whether one adheres to a national or state-centric vision. Rather, these are matters of both actual record and interpretive technique, influenced by specific details and, in particular, how one views the time frame within which the inquiry should be conducted.

Or, at least, so I believe and will now try to explain, with two important caveats. First, I do not for a moment pretend that I am doing justice to complexities and nuances in the extensive literature both embracing and responding to the new originalism. More importantly, I neither discuss nor address the issues posed by the distinction many new originalists draw between constitutional interpretation and constitutional construction.13 Rather, my aims are more modest as I try to answer two questions. First, does the new originalism square with certain key assumptions that informed the drafting and ratification of the Constitution? Second, how do those assumptions impact application of new originalism insights on one of the most contentious and important current constitutional questions, what it means to “regulate” “commerce.”

Included in

Law Commons