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Linda Greenhouse’s Nonoriginalism

In the New York Times, Linda Greenhouse defends nonoriginalism by attacking a straw man of originalism. This is par for the course, and Mike Ramsey does a great job of showing that Greenhouse’s understanding of originalism is pretty deficient. Public meaning originalists focus on the words in the Constitution, not on the speculative intentions of what the framers of the law might have expected or hoped. Even intentionalists focus on the intended meaning of the terms and they place significant weight on the ordinary meanings.

But there is more going on here than a simple misunderstanding of originalism. There is also a misunderstanding of the reasons for originalism. Here is the most important point: Originalism is not about advocating a dead constitution or opposing constitutional change. It is about how constitutional change should occur. Constitutional change should occur through the amendment process where it can be enacted through a genuine consensus of the nation rather than through the political judgments of a majority of the Supreme Court.

Second, Greenhouse’s argument assumes that the dynamic understanding of the Constitution will lead to good results. Her example of allowing women to be judges is the example upon which she focuses — one that everyone today agrees with. But what would Greenhouse do if the results are not good ones, according to her lights? Greenhouse normally gets very upset if the Court does not adopt some nonoriginalist change that she favors. If the Court seeks to reverse a previous nonoriginalist change in favor of the original meaning, my memory is that she gets even more upset. But imagine what she would do if the Supreme Court attempted to depart from a provision of the original meaning that she favored – say, if the Court concluded that children born to illegal aliens in the United States were not entitled to be deemed citizens, because of changed circumstances.

So what is the reason why Greenhouse favors nonoriginalism?  One reason she might favor it is that it has led, or she believes is likely to lead, to results she likes on political grounds. If that is her reason, one would hope that she would say so. Of course, that would provide no good reason for others who disagree with her politics to favor it.

If that is not her reason, then why does she favor it? I genuinely don’t know. There are arguments for dynamic understandings – say David Strauss’s or Jack Balkin’s – but does she agree with them or rely on something else?

Reader Discussion

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on October 21, 2013 at 10:14:20 am

Progressives do not respect the Constitution because they view it as a bourgeois impediment to their agenda of having experts run the country more scientifically. It's no accident that Democrats never refer to the Founders and abhor originalist analysis of any kind.

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Ron Johnson
on October 21, 2013 at 11:36:58 am

She once wrote (I can't recall the issue; it was in the late 1980s) that no Amendment (maybe it was broader than that) had ever advocating narrowing the scope of a Bill of Rights liberty (maybe it was death penalty). I submitted a letter to the NYT pointing out that the 13th Amendment narrowed the Supreme Court's opinion in Dred Scott defending an alleged 5th Amendment liberty to take one's slave wherever the owner wished.

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Ken Masugi
on October 21, 2013 at 16:46:45 pm

So why does anyone pay attention to a political hack who practices the legal equivalent of the Tim McCarver school of sports broadcasting - feigned intellectualism, creative reporting, botched understanding of the game and the need at all costs to sound insightful!! He ruins a baseball broadcast and she pollutes legal reporting! At least McCarver does not have an apparent agenda!

take care
gabe

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gabe
on October 22, 2013 at 10:43:01 am

Actually, one can make a good originality argument that Fuller and Harlan had the better of the argument in Wong Kim Ark, truning to the principles of 1776, rather than soil as the basis of citizenship. That was 1898. Roughly the same majority made soil the basis of citizenship as gave us separate but equal.

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Richard S
on October 22, 2013 at 10:43:51 am

Meant to write origanalist. Darn auto-correct.

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Richard S

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.