The ideas of Justice Scalia remain at the center of constitutional discourse even after his death.
“The founders of our country were great men with a vision,” Justice Ginsburg said. “They were held back from realizing their idea by the times in which they lived.
But, she added, their notion was that society would evolve and that the clauses of the Constitution would grow with society.
“The Constitution would always be in tune with society that the law is meant to serve.”
This notion that the Framers of the Constitution intended the Constitution to evolve over time is one of the basic principles of many nonoriginalists and of some (liberal) originalists. It has, however, very little support.
One version of this approach interprets the language of many constitutional provisions to be abstract. Under this interpretation, future interpreters can apply these abstract provisions differently over time. In this article, John McGinnis and I described this approach (followed by nonoriginalist Ronald Dworkin and originalist Jack Balkin) as often committing the abstract meaning fallacy. We defined the fallacy as occurring “when interpreters conclude that possibly abstract language has an abstract meaning without sufficiently considering the alternative possibilities.”
Ginsburg here commits a close cousin of the fallacy, what might be called the “Framers intent — evolving constitution fallacy.” She assumes, without justification, that the Framers intended the Constitution to evolve.
There is very little, if any, justification for the blanket assumption that the Framers intended the Constitution to evolve. The main justification is language from McCulloch v. Maryland, which I believe is misinterpreted to support an evolving constitution. Yet, these fallacies continue to be repeated, as with Ginsburg, perhaps because they allow those who favor a living constitution to defend against the criticism that they are not being faithful to the Constitution.