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Andrew Coan: Amending the Law of Constitutional Interpretation
Michael Ramsey

Andrew Coan (University of Arizona, James E. Rogers College of Law) has posted Amending the Law of Constitutional Interpretation (13 Duke Journal of Constitutional Law & Public Policy 85 (2018)) on SSRN.  Here is the abstract:

In recent years, the law of interpretation has received a welcome flurry of attention. Much of this attention has focused on the law of U.S. constitutional interpretation circa 2018 and whether that law should be understood as embracing originalism—or any other specific approach—or whether it is better understood as broadly open-textured or otherwise pluralist. This symposium essay takes a different tack. As a thought experiment, it proposes a constitutional amendment explicitly mandating a nonoriginalist approach to constitutional interpretation. This thought experiment has a number of interesting implications for both originalism and nonoriginalism and for the law of interpretation more generally. Most fundamentally, it suggests that constitutional theorists should think more deeply about the nature and grounds of constitutional decision-makers’ presumptive obligation to follow the law.

And from the introduction to the article:

Without further ado, here is my proposed amendment:

Section 1. The United States Constitution, including this Amendment, shall be construed to accommodate the practical exigencies of human affairs and the evolving standards of decency that mark the progress of a maturing society.

 Section 2. Originalism is not our law and never has been.

 As Section 2 implies, this is intended as a clarifying amendment. Contrary to the views of some originalists, the U.S. Constitution as it now stands does not compel an originalist approach to constitutional interpretation. More important for present purposes, the Constitution could not have been written to compel such an approach, nor could it be amended to do so. Even if the constitutional text explicitly mandated originalism, nonoriginalist Supreme Court justices and other constitutional decisionmakers would still have good normative reasons for ignoring that mandate, reading it flexibly, or following it selectively. At most, such an amendment might supply countervailing normative reasons for adhering to originalism, which may or may not outweigh the reasons for adhering to some form of nonoriginalism. Or so I shall argue.

The same does not hold for an amendment explicitly mandating nonoriginalism. Rather, the logic of originalism would compel nearly all committed originalists to respect the original meaning of such an amendment. The only originalists for whom this would not be true are what I have called “substantive originalists,” who embrace the Constitution’s original meaning because they believe it to be morally just or likely to produce good practical consequences. But this is a relatively small group. Other originalists would be compelled by their own precepts—popular sovereignty, written constitutionalism, legal positivism, etc.—to embrace nonoriginalism

Agreed.  But I think this thought experiment proves something rather different from what the author thinks.  First, let's rewrite the amendment to state the proposition a bit more clearly, so everyone knows what we are talking about: 

Section 1.  In the name of the Constitution, judges shall have the power to disallow any laws or government actions which they think inappropriate on moral or pragmatic grounds.

I agree that if this amendment were adopted, originalists would accept that it grants to judges the power to strike down any laws or government actions which they think inappropriate on moral or pragmatic  grounds.  But this amendment has not been, and would not be, adopted.  It is not consistent with the way we think about judges in our separation of powers system.  We do not think of the judiciary as a third branch of the legislature with a policy-driven veto power over the actions of the other branches. We think that judges have the constitutional powers they do because they interpret the existing law, not because they are well-suited to make policy. 

I would also expect most (though perhaps not all) originalists to oppose the hypothetical amendment on the ground that it vests judges with a power that is inappropriate for a non-elected branch of government.  If they lost this debate, I think most (perhaps all) originalists would concede to the lawmaking power of the people, as exercised through amendment.  The originalists' core point, though, is that this amendment has not been adopted by the people; rather it has been imposed by the fiat of nonoriginalist judges.