A constitution that puts judge-made law first will be an increasingly unoriginalist constitution as precedent is piled on precedent.
we should follow the Constitution’s original meaning because the Constitution is a good one that protects individual rights, democracy, and limited government. But the goodness of the Constitution is based not just on our evaluation of the Constitution, but also on the fact that it was enacted through a beneficial supermajoritarian enactment process that generally leads to desirable constitutional provisions.
Instead, it is argued that the reason to follow the Constitution’s original meaning is that it is the law. This is an extremely common argument, but alas it is far from obvious. While it is possible that an argument can be made on these grounds, it will require a great deal of work.
One problem is that if the Constitution were an extremely undesirable document – if it required or authorized harsh and brutal treatment – then there would be good reasons for not following it. For example, if a law required slavery, the mere fact that it was the law would not be a good reason for following it. (Of course, there might be other reasons for following the law, but not simply that it was the law.)
But another problem with the argument that the original meaning of the Constitution is the law that it is not clear that it is true. What does it mean to say that the Constitution’s original meaning is the law? Certainly, people are in jail in the U.S. – lots of them – for violating laws that are inconsistent with the Constitution’s original meaning. More generally, nonoriginalist Supreme Court decisions are enforced without a second thought by most people all the time.
Perhaps, the original meaning is the law view means “the original meaning should be the law.” If this is what the view means, then it is not what we usually mean by a claim that something is the law. Instead, it is a normative argument that the law should be something. Even though the law is something else, the Constitution’s original meaning should be the law. So this is a normative argument, not a claim about the law.
Or perhaps the original meaning is the law view means “the original meaning is the law, but the legal system is unfortunately not enforcing the law.” This claim is also problematic. What does it mean for something to be the law, if the legal system is not enforcing it? The law, especially in positivist versions, but also often in other theories as well, ordinarily has a component of something that is actually enforced.
If the original meaning is not necessarily the law, then what is the law? This is a difficult issue. The leading theory these days is Hart’s rule of recognition theory, which asks what the law is by determining what judges and other officials would recognize as the law. There are many difficult issues in applying this theory to originalism, but it may be that one can work out an argument for concluding that the original meaning is the law. But doing so will be difficult work and it is certainly not a simple or easy matter.
I had an earlier post on this subject and plan future ones. But for now, this argument is undeveloped and so it does not supply a compelling argument for following the original meaning – not yet at least.