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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?

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