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09/18/2017

John McGinnis on Originalism and Amendments
Michael Ramsey

At Liberty Law Blog, John McGinnis: How Originalism Energizes the Amendment Process.  From the introduction: 

In a recent post Mark Pulliam has nicely observed that the amendment process itself makes the Constitution a living document, capable of responding to new circumstances.   But  defenders of  living constitutionalism as an interpretive theory do have a response to this  position. They have argued that the amendment process is just too stringent and must be supplemented by judicial updating. Mike Rappaport and I have provided two interrelated arguments about why these theorists are wrong, thus bolstering Mark’s position. ...

RELATED:  Also from John McGinnis: Scalia’s Reading Law Reflects the Rise of Formalism and the Language of Law.  A key point: 

Reading Law has one important flaw.  Scalia and Garner do not identify adequate criteria for determining what is a valid canon. But it is essential to do so if we are to apply canons consistently to the Constitution. In our view, the interpretive rules for the Constitution of 1789 are those that were deemed applicable at the time. Thus, originalists must research the relevant interpretive rules in 1789 no less than they must investigate the meaning of the terms at that time.  And just as interpreters should choose the better meaning of a term, even if only slightly better than the alternative, so should interpreters likely embrace interpretive rules when the better view is that they were deemed applicable to a text like the Constitution.