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Originalism Protects the Timelessness of the Constitution

I was grateful to appear with Michael Greve on the panel in which he delivered remarks on originalism that were posted in this space earlier this week.  I also appreciate his kind remarks on original methods originalism, which he seems to consider the least bad of “academic originalism.” Nevertheless, I am in disagreement with some of his claims.

Begin with his view that originalism is new. Mike Rappaport has already contested this claim, so on this point I will be brief. The word may be a neologism, but the concept is old as the republic. Listen to James Madison, father of the Constitution:

The sense is which the Constitution was accepted by the nation is . . . . .  the legitimate Constitution.  And if that not be the guide for expounding it, there can be no security for a consistent and stable . . . exercise of its powers.

If originalism is an “ideology” it is the foundational ideology of American constitutionalism.

And originalism was the way Constitutional law was done until the progressive era came up with the idea of the living constitution, partly under the influence of Darwinian and evolutionary thinking. Howard Gillman, now Chancellor at the University of California, Irvine and no originalist himself, wrote the definitive articleThe Collapse of Constitutional Originalism and the Rise of the Notion of the “Living Constitution” in the Course of American State-Building, on this historical arc.  But because originalism is so foundational, even the the New Deal and the Warren Court were not able to kill it. It was always part of American constitutional law, waiting to be revived.

But to me what is most striking about Michael’s position is that he seems at times to adopt the progressive view of an evolutionary rather than a timeless Constitution. Michael calls “a timeless Constitution above all politics” a “mirage.”

But the Constitution itself is indeed in one sense timeless and it is this timelessness that energizes a politics to address change. As I said in my remarks and Mike Rappaport and I have expounded at greater length, the Constitution interpreted timelessly itself contemplates politics to address social change in three ways.

First, the states themselves have ample powers subject to relatively few restrictions. Their experiments to address social change can be readily adopted by other states in a continental republic with a free press.

Second, Congress has substantial but not unlimited powers to legislate. And the powers are often stated as principles, like the Commerce Clause, that expand in scope even if they do not change in meaning as the nation matures. The Necessary and Proper Clause allows them to choose the means to do this, so long as their decisions are bona fide attempts to effectuate these powers and do not try to exercise other “great powers” denied by the enumeration.

Finally, the Constitution creates an amendment process by which to replace provisions that have become outmoded.  And here is where originalism comes in again. The high politics of the amendments will not work without originalism. If judges can change the constitution, which includes interpreting it in ways not contemplated by the Framers, the judiciary rather than the people will control constitutional change. Indeed ordinary politics may be compromised too as people seek to have judges unconstrained by the original meaning do what they cannot persuade legislators to do in legislation.

Thus, the timelessness of the Constitution both constitutes the framework for ordinary politics and protects the framework of the high politics of the amendment process. The timelessness of the Constitution, of course, is importantly qualified by Article V, but that kind of timelessness is needed to allow each generation of the Constitution to engage in politics and above all seize the moment to become Framers themselves.

Reader Discussion

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on April 26, 2019 at 09:52:41 am

I think, those of us who are interested in the Law, and matters "constitutional", all too often view ALL such matters through the prism of the Judicial Branch; that is to say, that we consider jurists to be THE active mechanism of constitutional action / fulfillment. We are incorrect in this.

McGinnis exposition above is "just" right as he looks not only to the Judicial for constitutional fulfillment BUT also, and like Greg Weiner to the Legislative. If we fail to recognize (appreciation is, perhaps, nowadays, a bit too much to hope for) the instrumental role of the Legislative in the fulfillment of COTUS, we may misunderstand HOW the constitution provides for, allows for, indeed compels "adjustment over time" in recognition of changing circumstances. It is the distinct role of the Legislative to provide political solutions to changing circumstances.

In this regard, I return to my earlier comment that, "While COTUS may not be LIVING, it is still breathing."
Politics, and Legislative politics WAS the means by which the Crafters intended to meet changing circumstances. COTUS was the Executive document that would provide the FRAMEWORK for those Legislative prescriptions.

Whether, originalism is old or new is, to me, of no real consequence. When originalism is deployed in an ideological fashion, we may, in a manner not dissimilar to progressive approaches, find ourselves employing the same deceptive / ideologically self assuring intellectual maneuvers as do the Living Constitutionalists.
(gotta go - grandkids are climbing all over the keyboard)

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