AFTER ALL, IT ALLOWS AMENDMENT:

If the leaked draft of the Dobbs v. Jackson Women's Health Organization opinion is any indication, the future of conservatism in the courts is not common good constitutionalism. As constitutional theorists have overwhelmingly emphasized, this and similar approaches to constitutional interpretation--if one may call them that--appeal to few legal minds, particularly those of judges. There is almost zero indication that basing legal decisions on aspirational conceptions of a flourishing, moral wonderland will gain any traction now or later, and rightly so--such "methods" are almost completely detached from the actual, written law. These metaphysical visions should be relegated to the fields of political philosophy or political thought. It is time for constitutional theorists to move on and stop beating a legless horse.

The future of conservatism in the courts still lies in text-based originalism. But it is true that the current approaches to originalism often rely on an undisciplined hodgepodge of original sources. Indeed, originalism comes in forms that variously give greater or lesser weight to the convention debates, the Federalist, contemporary public perceptions, records from the state ratifying conventions, private letters, Anglo-American common law, historical events, congressional and executive action, early case law, and so on. This is all well and good, but it is unclear which sources deserve the most weight once the text itself becomes vague or ambiguous.

If jurists and scholars crave certainty and legitimacy in the judiciary, then the ultimate goal should be to arrive at a clear method of interpretation that consistently assigns weight to different categories of original sources on a hierarchical scale. Crystallizing text-based originalism into a more coherent and universally applicable method of constitutional interpretation would help to secure the legal principles that define and balance the American forms of liberty, order, justice, and power. We are not alone in this venture. The ghosts of giants still stand among the pillars of our libraries, waiting for us to rediscover their immortal remains. Some scholars just need to get back on their shoulders and start looking around.

With that in mind, originalists should, within the framework of the Blackstonian method of statutory interpretation, rely first on the earliest case law--rather than the latest precedents--when trying to determine the meaning of constitutional text. In other words, if the words of the Constitution are unclear or ambiguous, and if the context of those words fails to produce clear meaning, then the first non-textual step in determining meaning should be a close examination of the first eras of legal interpretation of those words, particularly in the federal judiciary.

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