Originalism: We the People of the Past, the Present, and the Future

Frequently, it is argued that the problem with originalism is that it forces us to be governed by an old Constitution that is out of date. We think that this claim gets it backwards: nonoriginalism impedes the Constitution from being improved through the amendment process.

It has sometimes been thought that the amendment process is just too difficult to be workable, but the historical record belies this.  During the period when originalism was the dominant mode of interpretation, hugely important amendments were passed; the Sixteenth Amendment permitting the income tax, the Seventeenth Amendment permitting the direction election of Senators, the Nineteenth Amendment guaranteeing women the right to vote.   Many of these amendments were passed by people who might have been thought to have vested interests against them.  For instance, state legislatures voted for an amendment that gave up their power to choose senators. Men voted for an amendment that diluted their vote.

But as non-originalism became more powerful, the amendment process fell into disuse for the enactment of profound social change.  This is not surprising.  If judges decide how to update the Constitution, that will preempt the constitutional amendment process from making the change.  If judges do not follow the original meaning of the Constitution, citizens will be loathe to give them another blank check.  These were the main reasons why the Equal Rights Amendment was defeated.  The Supreme Court had delivered a substantial measure of equal rights already and through a wide variety of nonoriginalist opinions had engendered distrust of its future decisionmaking.

In short, it is originalism that protects the amendment process.  If judges can change the Constitution, most people will put their energy into trying to get the right judge appointed and creating a culture where it is thought proper for judges not to be constrained by originalism. Of course, that is not a hypothetical culture. It has been too often ours in recent decades.

Thus, originalism and the amendment process are mutually supportive. 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. The Amendment process and originalism march under a single banner and that banner reads: here We the People, not the We the Elite Judges, rule.

Originalism is again showing signs of becoming a respected interpretive method both on and off the Court. On the Court we have decisions such as the District of Columbia v. Heller.  Off the Court, we have academics of a wide variety of ideological views embracing originalism. And with the rise of originalism we can expect a more vigorous constitutional politics, where political movements can press for constitutional amendments to improve our fundamental law.

In short,  the Constitution, like the other great achievements of civilization, is not the work of We the People of one generation.  Under a good constitution, interpreted according to its original meaning, each generation can participate in adding to our fundamental document.  Each generation also reaps the advantages of the work done by previous generations. Each generation can be assured that its work will be respected by the next, just as it respects the work of its predecessors.  Edmund Burke famously said that a good society was a compact between the dead, the living, and the unborn, as traditions of a past age become refined in the present with a view to further developments in the future.  Our Constitution translates Burke’s great insight into a prized legal mechanism for the enduring governance of a flourishing society.

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