The rationale for what is now called “originalism” has chiefly to do with the legitimacy of the 1787 Constitution.
Charles Cooke has called for a constitutional amendment to overrule Kelo v. City of London. In Kelo a narrow majority of the Supreme Court read the public use requirement out of the Fifth Amendment’s Taking Clause and allowed the amendment to become a tool of private developers to take property from the politically less powerful. Cooke makes the excellent point that this amendment may unite many conservatives and liberals, because the Kelo decision aided special interests at the expense of the property rights of ordinary citizens.
Passing a constitutional amendment would be good for the republic even beyond the benefit of overturning Kelo and the more expressive one of trumpeting the importance of property rights. Deliberating on and enacting constitutional amendments is good for our constitutional culture.
First, it would rebut the facile and false claim that our constitutional amendment process is so hard that no significant amendments can be passed—a claim often made to justify non-originalism. In fact, the nation passed the transformative sixteenth and seventeenth amendments when there were almost as many states as there are today. In 1971 the twenty-sixth amendment reducing the age requirement for voting to eighteen took less than four months to ratify—the shortest time in the nation’s history.
Second, moving amendments to the front and center of debates would improve our politics. Because a supermajority is needed to pass a constitutional amendment citizens have to focus on persuading ideologically diverse people. That dynamic encourages more political compromise, harnessing the energy of social movements while reducing their tendency to polarize the polity.
Finally, the more serious constitutional amendment proposals, the better for originalism and the rule of law. As Mike and I observe:
There can be no normatively attractive originalism without the amendment process. The case for originalism depends on a beneficial process, like Article V, that permits each generation to change the Constitution. But there also can be no effective amendment process without originalism. Without originalism, constitutional change can occur through other means, allowing groups to change the Constitution without amending it and leaving the amendment process a dead letter. Proper constitutional interpretation and a vigorous constitutional politics march under a single banner: no originalism without the amendment process and no vigorous amendment process without originalism.
Ilya Somin, the leading academic expert on the decision, has helpfully drafted an amendment to overrule Kelo. It only needs sponsors in Congress. Democrats and Republicans, unite on this issue! We have everything to gain—the return of republicanism.