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07/30/2020

Ilan Wurman on what Originalism Conserves
Michael Ramsey

At Law & Liberty, Ilan Wurman (Arizona State): What Originalism Conserves.  From the introduction:

For many decades, the Supreme Court has assumed that the Constitution must change with the times. In the words of Justice William Brennan, “current Justices read the Constitution in the only way [they] can: as twentieth [now twenty-first] century Americans.” This notion of “living constitutionalism”—the idea that we aren’t strictly bound by the meaning a constitutional provision might have had when it was enacted—has resulted in landmark Supreme Court decisions in many areas of law. The Miranda rights made popular by television and the right to a government-paid criminal defense lawyer; the expansion of federal power under the Commerce Clause since the New Deal; the creation of independent administrative agencies; and the Supreme Court’s reasoning in Roe v. Wade and Obergefell v. Hodges—all arguably depend on living constitutionalism.

In response to some of these “liberal” decisions, conservatives articulated and advanced an alternative theory of constitutional interpretation in the 1970s and 80s: originalism, the commonsense notion that we are bound by the original meaning of the Constitution’s text, and that judges shouldn’t update that text’s meaning. But it would be a mistake to associate originalism only with its modern-day political defenders and abandon it to the extent to which it does not serve the interests of modern-day conservatives.

For one thing, originalism is not an invention of the 1970s; it was with us from the beginning, at least until living constitutionalism began to take root in the progressive era. Here is John Marshall in Gibbons v. Ogden: “As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense . . . .” And here is James Madison in an 1824 letter to Henry Lee: “What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.”

More significantly, the theoretical defenses of originalism have never depended on its political results although, to be sure, there is some connection between conservatism and originalism that is worth defending (as I shall explain shortly).

Rather, the argument for originalism can be established in two steps, or by answering two questions, both of which are largely apolitical ...