1/ Stanford historian Jack Rakove has an essay on originalism in today’s Washington Post (if you subscribe, you can find it). A long-time critic of originalism, Rakove insists the first “coherent” use of originalism is in Madison’s Jay Treaty speech of 1796. Rakove’s wrong.
2/ In his 1796 speech, Madison refers to his 1791 speech on the US Bank, delivered 3 years after ratification while the Bill of Rights remained pending in the States. Here, Madison presented a fully articulated originalist theory of constitutional interpretation.
3/ According to Madison, “In controverted cases, the meaning of the parties to the instrument, if to be collected by reasonable evidence, is a proper guide” and that “Cotemporary and concurrent expositions are reasonable evidence of the meaning of the parties.”
4/ Madison discussed “the cotemporary expositions given to the Const.,” including the Federalist “defense” of the Const. and the “explanations in the state [ratifying] conventions. . .. Here [Madison] read sundry passages from the debates of the Pa., Va and N.C. conventions.”
5/ Madison read the "explanatory declarations and amendts accompanying the ratifications of the several states,” & the “explanatory amendts proposed by Congress” (the Bill of Rts). Together, “all this evidence” presented “the sense in which the Const. was understood and adopted.”
6/ In his book, Rakove discusses parts of this speech, but dismisses it as containing just the “germ” of originalism. Nice try. This is originalism in full, coherently & publicly articulated by James Madison years before Rakove's claimed “1st coherent” use of originalism.
7/ In 1796 Madison clarified that “the parties” whose understanding was paramount were the ratifiers in the states. The const. was but “a dead letter, until life and validity were breathed into it, by the voice of the people, speaking through the several state conventions.”
8/ Despite Rakove’s decades-long effort to disparage originalism as somehow violating the understanding of the Founders, the historical record makes it clear that originalism has been with us from the beginning, articulated by the father of the Const. before the ink was dry. Fin.

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