Jeff Shesol, reviewing Joseph Ellis’s new book, American Dialogue, writes that James Madison came to see an enduring tension between federal and state authority as a great advantage of the Constitution. Shesol continues,
It would never have occurred to Madison, therefore, that the Constitution should dictate every answer or foreclose all debate, no matter what is said at meetings of the Federalist Society or in Supreme Court confirmation hearings. As Ellis argues, the prevailing conservative doctrine of “originalism” is a pose that rests on a fiction: the idea that there is a “single source of constitutional truth back there at the founding,” easily discovered by any judge who cares to see it.
The second sentence in this passage is a familiar strawman. As widespread as it is in liberal polemics against originalism, and especially those of Ellis, I am not aware of any originalist who believes that it is easy to determine the meaning of every provision of the Constitution and its bearing on all contemporary cases. (Robert Bork famously discussed how an originalist should handle one kind of uncertainty about constitutional meaning and has been pilloried for it, often unfairly, for decades; but the fact that he discussed the topic is itself powerful evidence that originalists understand perfectly well that this type of problem exists.)
The first sentence is, however, a more exotic strawman. It is logically distinct from the second one: Even granting the belief – again, a belief held by nobody significant — that original constitutional meaning can always be ascertained, it would not follow that the Constitution “dictate[s] every answer” or “foreclose[s] all debate.” It is not only possible that the Constitution, rightly understood in light of its original understanding, leaves many questions of governance unanswered. Down the decades, originalists have been more likely to read the Constitution as leaving options open than their critics have been.
Non-originalists have sometimes argued that the Constitution prohibits the death penalty; originalists almost all conclude that it neither prohibits nor requires it, but leaves the choice open to legislatures. The Constitution, that is, does not answer the question of what to do about capital punishment.
I have spoken at many Federalist Society events and been to more, and in every gathering it would have been considered an obvious point, not worth mentioning, that the Constitution mostly structures governing choices rather than laying them out in detail.