And in doing so, they inevitably exercise discretion, and act subjectively. The larger point that originalism overlooks is that many of the issues addressed by the Constitution were contentious even when the Constitution was adopted. The Revolutionary Era was a time of great social, political, and intellectual tumult during which there were strong disagreements about the nature of government and rights. The ratification votes in some states were exceedingly close, with Federalists and Anti-Federalists often expressing radically different views of what the Constitution's text means. For this reason, searching for a consensus of meaning in the eighteenth century will often prove more rather than less difficult than searching for a contemporary consensus, because judges must rely on an imperfect historical record of a world that is long gone.
Professional historians differ sharply in interpreting the very same evidence.
It is no wonder that judges, who typically lack professional training in history, do too. Furthermore, even when judges can confidently reconstruct the past, interpretive puzzles abound. The world inhabited by the framers and ratifiers of the Constitution and Bill of Rights is profoundly different from our own. Earlier this year, in Ferguson v. City of Charleston , the Supreme Court ruled that, absent consent, warrantless drug testing of hospital patients for law-enforcement purposes violates the Fourth Amendment. Unsurprisingly, none of the Justices in either the majority or the dissent addressed the question of whether such drug testing was generally considered permissible in the eighteenth century.