Jalal Tarar & Shahbaz Tarar (University of London) have posted Constitutional Ghosts: Myth, Metaphysics, and the Afterlife of the Framers on SSRN. Here is the abstract:
This paper examines the paradoxical role of the constitutional framer in judicial reasoning. While courts invoke the figure of the framer to legitimise constitutional interpretation, they systematically exclude actual framers from interpretive authority. The framer is constructed as a mythic origin, sacralised but silenced, a legitimating figure whose historical presence is evoked to anchor doctrine, yet whose interpretive claims are denied to preserve judicial autonomy. Drawing on hermeneutics, political theology, and semiotics, the paper argues that this exclusion is not a contradiction but a structural necessity of constitutional democracy. Through case studies from the United States, Pakistan, India, Iraq, and South Africa, the paper illustrates how figures such as James Madison, Abdul Hafeez Pirzada, and Albie Sachs are invoked as symbols but denied operative authority. The analysis critiques originalism by demonstrating that framers often disagreed with each other, evolved ideologically, or repudiated their own positions, rendering authorial intent an unstable foundation for legal meaning. The judiciary’s refusal to yield interpretive control is shown to be essential for the law’s adaptability and coherence over time. Constitutional meaning is not inherited but constructed; the framer functions as a judicial artefact, invoked rhetorically but displaced institutionally. This performative logic reveals that constitutional law sustains itself not by preserving the framer’s voice but by ritualising his absence. The framer, in this sense, is a constitutional ghost, essential to the mythos of legitimacy, yet exiled from the terrain of interpretation.
This critique appears to be directed at an early form of originalism (Original Intentions Originalism) that has been almost entirely supplanted by Public Meaning Originalism. Statements of the framers may have evidentiary force, but the central inquiry is into the communicative content of the constitutional text. For a concise statement, see Original Public Meaning.