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After Donald Trump’s election, Bernard Bailyn pondered the relevance of the debate on the Constitution to contemporary politics. As Bailyn wrote, the founders knew how the “debasement of free states” happened. In 2018, he perceived the constitutional system “tested as never before.” The founders worried about “a charismatic demagogue” who would “cut through or ignore or distort the structure of law, install his corrupt minions in high office, protect them by use of the pardoning power.” Repeatedly these fears had appeared in the debate on the Constitution. Bailyn ended by quoting James Madison’s 1796 comment stressing the importance of the debates. As he was perfectly aware, over the last thirty years, the same words had been quoted repeatedly to attempt to justify textual and public meaning originalism as an interpretive methodology. But for Bailyn they gestured at originalism’s fundamental misunderstanding and misguided misappropriation of the debate on the constitution.


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7 Sep 2022
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  • Subject
    • Constitutional Law

    • Politics

  • Journal title
    • Law & History Review: The Docket

  • Volume
    • 3

  • Issue
    • 4

  • Date submitted

    7 September 2022

  • Additional information