Brett Kavanaugh's ascension to the United States Supreme Court is sure to thrust originalism center stage in the debates over constitutional interpretation. Two well-timed new books—Jonathan Gienapp's The Second Creation: Fixing the American Constitution in the Founding Era and Eric Segall's Originalism as Faith—challenge originalism's legitimacy and coherence. But though they present some new evidence and arguments, both books essentially resurrect two older, and still unconvincing, critiques.
When H. Jefferson Powell's law review article, “The Original Understanding of Original Intent,” appeared in 1985 it was considered a fatal blow to originalism. Powell argued that the founders didn't think their intentions should govern in the future, and therefore a method of constitutional interpretation privileging such intent was self-refuting. Powell's article is still cited for the proposition that because the founders were not originalists, originalism refutes originalism.
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