Originalism is a theory of constitutional interpretation, it is not—nor can it be—a constitutional theory in itself.
I believe that the constitutional amendment process is essential to originalism and to a desirable constitutional law. One of the most disturbing things about recent generations is that no constitutional amendment has been proposed and ratified since the 26th Amendment guaranteeing the right to vote to 18 year olds was enacted 1971. (The 27th Amendment was proposed in 1789 and ratified over two centuries, receiving its last state vote for ratification in 1992).
One result of this failure to employ the constitutional amendment process is that the process is atrophying. As a matter of political psychology, people do not think enough in terms of amending the Constitution. A certain type of thinking is needed – identifying a rule that has broad support and that would improve the Constitution.
At this point, it would be beneficial to pass a constitutional amendment, even if it is a minor one, just to show that the process can still function. I have a proposal that might receive the necessary support.
The lame duck period following a presidential election leads to all kinds of mischief and some of this could be easily addressed by a constitutional amendment. If I had my druthers, I would pass a broad constitutional amendment that cut back on lame duck actions following both presidential and congressional elections, but that probably could not pass. So let’s just try a narrow one.
The President should not have the authority to pardon people following a presidential election unless he will continue in office for four more years. We have seen all kinds of questionable actions by Presidents in this period from both political parties, including some of the recent pardons by President Obama, the pardon of Marc Rich by President Clinton, and the pardons of Caspar Weinberger by the first President Bush. Some of these pardons may be defensible. I was sympathetic to the pardon of Weinberger, given the outrageous behavior of Independent Counsel Lawrence Walsh. But it occurred after the election, not before. Moreover, many Democrats believe that pardon was improper and therefore including it as part of the reason for the amendment can generate the necessary bipartisan support for the amendment.