Reclaiming the Founders’ Vision: A New Era of Constitutional Thought
For many, the U.S. Constitution feels like a settled document, interpreted and reinterpreted through decades of legal precedent. But a growing movement within legal scholarship, spearheaded by figures like Stanford Law’s Jud Campbell, is challenging that assumption. Campbell’s work isn’t about overturning established law; it’s about fundamentally altering how we understand the Constitution’s origins and, its application today.
Beyond Originalism and Progressive Constitutionalism
Campbell’s research delves into the historical context of the founding era, revealing a more nuanced understanding of rights than commonly assumed. He argues that the founders didn’t necessarily share our modern conceptions of rights, often invoking natural, customary, or common-law rights in different contexts. Misinterpreting which tradition they were using can lead to significant misunderstandings of their intent. This perspective complicates both originalist and progressive constitutional interpretations.
“I don’t see my work as necessarily pointing in a liberal or conservative direction,” Campbell explains. “I’m trying to understand how people thought in the past, how they understood rights, who got to enforce them, and how they limited governmental power.” This historical inquiry isn’t about finding definitive answers, but about recognizing the different assumptions underpinning contemporary constitutional debates.
The Lost Sense of Constitutional Responsibility
A central theme in Campbell’s scholarship is the erosion of what he calls the founders’ “sense of constitutional responsibility.” Today, the Constitution is largely seen as the domain of judges. However, the founders believed that all political actors were bound by the principle that public acts must serve the common good. This concept, Campbell argues, has been largely lost.
This decline is visible in the steady erosion of political norms. Campbell noted in his acceptance speech for the Federalist Society’s Joseph Story Award that the founders envisioned a system where citizens and politicians alike understood and valued the Constitution’s underlying principles. The current political climate, characterized by relentless partisan conflict, would likely have alarmed them.
Free Speech and the Separation of Powers: A Forgotten Nuance
Campbell’s research also uncovers forgotten nuances in founding-era thought. He points to a distinction between legislative and executive restrictions on free speech, a nuance that has disappeared in modern constitutional doctrine. Founding-era thinkers treated these restrictions differently, a perspective that may be particularly relevant given the expansion of executive authority.
He is currently collaborating with Professor Jonathan Gienapp at Stanford Law, exploring the continuities between British and American constitutional thought in the late 18th century. Their joint work aims to illuminate how early Americans understood the origins of fundamental law and who held the authority to enforce it.
The Impact on Legal Education
Campbell’s approach extends to his teaching at Stanford Law School. He eschews traditional casebooks in his Constitutional Law class, instead curating his own materials to demonstrate the evolution of constitutional understanding. He emphasizes critical thinking and encourages students to consider diverse perspectives.
“I love helping students think through different ways of approaching the law,” Campbell says. “I try to acquire them to step into the shoes of people they disagree with. Understanding competing perspectives is how real progress happens.”
FAQ: Re-Evaluating the Constitution
Q: Is this research an attempt to overturn existing constitutional law?
A: No. Campbell’s work is focused on understanding the historical context of the Constitution, not necessarily changing current legal doctrine.
Q: What is the “common good” as the founders understood it?
A: The founders believed that all public acts should be directed toward the benefit of society as a whole, a concept that has diminished in contemporary political discourse.
Q: How does this research affect the debate between originalism and progressive constitutionalism?
A: It complicates both approaches by revealing that the founders’ understanding of rights differed significantly from modern interpretations.
Did you realize? Jud Campbell was awarded the Federalist Society’s Joseph Story Award in early 2025, a recognition of his significant contributions to constitutional scholarship.
Pro Tip: To deepen your understanding of early American legal thought, explore primary source materials from the founding era, such as the Federalist Papers and writings by key figures like James Madison and Alexander Hamilton.
Seek to learn more about the evolving interpretations of the U.S. Constitution? Explore our other articles on constitutional law, and history.
