William J. Magnuson (Texas A&M University School of Law) has posted Original Discontent (78 Vanderbilt Law Review (forthcoming 2025)) (57 pages) on SSRN. Here is the abstract:
There are many theories of constitutional interpretation. Most, but not all, of them assert that, in interpreting the Constitution’s provisions, we should start by taking seriously the intentions of the enactors, meaning, roughly speaking, its drafters, defenders and ratifiers. This Article argues that, in doing so, judges, scholars and policymakers have underestimated an important feature of the process of constitution-making: the discontent of the enactors themselves with the Constitution they were enacting. Time and again, during the Philadelphia Convention of 1787, during the penning of the Federalist Papers, and during the state ratifying conventions, the enactors expressed deep reservations about the structure and substance of the draft Constitution. They worried that it would lead to anarchy and tyranny. They worried that it would enshrine injustice into the policies of the new nation. And they worried that it would foment civil conflict and violence. These were not mere quibbles, the ordinary outcome of the messy process of compromise and negotiation. Their discontent went to the very foundation of the constitution. In short, many founders believed that the Constitution they created was not, in fact, good law.
This Article argues that “original discontent,” that is, the discontent of the enactors with the Constitution they were creating, is both underestimated and essential for understanding our constitution. Original discontent carries important implications for a wide range of the most common methods of constitutional interpretation. For originalists, it suggests that we should take the public statements of proponents of the constitution for what they were: more propaganda than heart-felt statement of belief. For living constitutionalists, it suggests that, even if we accept that judges should interpret the Constitution as laying down broad principles subject to evolving norms and moral beliefs, we must recognize that the founders were skeptical of those basic principles. For common good constitutionalists, it provides essential context about the original understanding of the constitution and its effects on the nature of the political community.
More fundamentally, this Article argues that original discontent calls for a broader reconceptualization of the nature of constitutions. One of the basic tenets of constitutional interpretation has always been that a constitution is something like a social contract: it lets our past selves rule our future selves. But nothing about that formulation tells us which views should matter: is it the views of the most rabid proponent, or of the average citizen, or of the coalition that voted in favor? What about the views of dissenters, or the disenfranchised, or the enslaved? By uncovering the hidden history of discontent at the center of the constitution’s creation, this Article highlights the importance of incorporating a wider range of perspectives into modern constitutional interpretation. It also provides a powerful reason for judicial restraint. If the Constitution was not thought to be a wise document even by those who drafted it, judges must exercise caution before using it to strike down democratically-enacted laws.
Just in terms of the abstract, it does not seem to me that the last two sentences follow from the prior discussion. I would think that most of the original discontent focused on there not being enough restraint on the federal government, not on there being too much.
Posted at 6:01 AM