The genius of America's Constitutional framers is in their disagreement with one another. The compromises they produced were occasionally horrific - e.g. 3/5 clause - and at other times sublime. So, what counts as the "original" interpretation among a crew of disparate players?

I DO think "original intent(s)" (plural) should be surmised as best as possible in interpreting any act of legislation. The text DOES matter. It was likely argued over and agreed upon after great deliberation. But the interpretation of that text was immediately disputed.

The very same people who gathered at Philadelphia (or chimed in from elsewhere), came to opposite views about the scope of our Federal government. But what drove these Jeffersonians and Hamiltonians apart was not an abstract question of Constitutional interpretation.

Instead, Jeffersonians and Hamiltonian differed on a broader view of American society and economy. Constitutional interpretation and argument were a means toward effectuating these Jeffersonian or Hamiltonian visions. "Loose" and "strict" construction was situational for most.

This is not a critique of ACB per se. Her writings as a professor show she understands the importance of pragmatism and balancing out as best as possible the views of a law's (or the Constitution's) authors (as best as can be determined) with changing social realities.

But it doesn't make rival interpretations any less robust. The extent to which a jurist privileges contemporary realities or evolving standards of decency v. original authorial intent is going to be a matter of degree, not kind.

Controversy arose after Griswold and Roe when the Courts seem to identify rights never explicitly stated by democratically elected legislatures. The 9th Amendment acknowledges unenumerated rights, but doesn't say how those unenumerated rights will later be identified.

The same could be said for Obergfell and Bostock. Surely the people should state through the democratic process what rights should exist under law. The problem is that legislative cowardice on LGBT issues and complex social reality put judges in a bind.

Even with Brown v. Board of Ed., which clearly draws from the original intent of the 14th Amendment's authors in Reconstruction once presented with evidence that "separate necessarily means unequal," the democratic reality at the time was defense of segregation.

And yet, public schools created even by Radical Republican governments in Reconstruction were segregated. The notion that the Federal courts could intervene and overturn the Southern social order was radical - and it was based not just on original intent but on current realities.

The Southern Manifesto by segregationists made clear that Brown ran contrary to decades of precedent and even to social realities in the Reconstruction North. The complaint about "judicial activism" started not with Roe but with the "All deliberate speed" activism of Brown.

The point here is that there must be a balancing act. Citing evolving standards of decency might be vague, especially when democratically elected legislatures have so cowardly failed to follow popular will - or counter popular will and defend minorities. But it's still needed.

Gorsuch's Bostock decision might be the best way forward on this. As best as possible, he drew from the Equal Protection Clause and effectively added LGBT as "protected classes" on the Civil Rights Act, even though Congress was too inept to act on its own.

The problem in Roe is that there are rival claimants to rights - the mother and the unborn - and it is much harder to adjudicate when there are fundamental differences over questions of personhood or bodily autonomy.

So here we are with a surreal debate over whether ACB will be "that" kind of originalist - a Thomas/Alito or a Gorsuch or a Kavanaugh (whose views aren't fully fleshed out in opinions yet) - knowing full well that this is a debate about contemporary issues, not jurisprudence.