by John O. McGinnis
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 article, The 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.