In the 1970s, as Article V became politically gridlocked for both parties, conservatives developed originalism. It allowed them to pursue constitutional change from the bench under the guise of 'restoration,' bypassing the defunct formal amendment route.
The decision to append amendments rather than edit the original text was a practical choice that had the unintended consequence of preserving a visible historical record, including obsolete and morally repugnant clauses like the Three-Fifths Compromise.
The framers, haunted by the violence of the Revolutionary War, intentionally designed Article V as a mechanism for peaceful change. They saw it as a crucial innovation to prevent future bloody insurrections when the government acts unconstitutionally, offering a path for reform instead of rebellion.
The Constitutional Convention of 1787 was convened primarily because the Articles of Confederation required unanimous consent for amendments. This allowed a single state, 'Rogue' Rhode Island, to repeatedly block necessary changes, proving the system was unworkable and necessitating a complete replacement.
The over 12,000 failed attempts to amend the Constitution are not just legislative footnotes; they constitute a meaningful archive of what the American people have wanted from their government but were unable to achieve, offering a people's history of constitutional desires.
The concept of an amendable constitution wasn't invented in 1787. It was developed through trial and error in the first state constitutions starting in 1776, which established the core principles of popular drafting, ratification, and the people's right to amend fundamental law.
The legal strategy to defend segregation in Brown v. Board was explicitly originalist, arguing the 14th Amendment's framers never intended to desegregate schools. This argument, architected by lawyer David J. Mays, formed an intellectual bridge to the formal originalism developed by Robert Bork in the 1970s.
As the formal amendment process became politically impossible, the Supreme Court's role expanded dramatically. It became the de facto forum for constitutional change, a shift driven by the paralysis of the legislative amendment route, which both political parties now exploit.
The best chance to abolish the Electoral College failed not on its merits, but because Southern senators voted against it to punish Senator Birch Bayh. They were retaliating against him for blocking two of Nixon's controversial Supreme Court nominees, sacrificing major reform for political payback.
Historian Jill Lepore argues that judicial originalism is not history. It artificially limits its sources to a few legal documents like the Federalist Papers, ignoring the broader context a professional historian would use. This creates a skewed, lawyerly version of the past rather than a genuine historical understanding.