At Law and Liberty, John McGinnis and I have an essay responding to Jill Lepore’s broadside in The Atlantic, “How Originalism Has Killed the Constitution.” We think that Lepore’s does a poor job:
It is safe to say that, unlike the more rigorous work of her colleagues, her jeremiad fails to meet standards of scholarship, as it distorts quotations out of context, misstates facts, and confuses concepts. And its central thesis—that originalism thwarts constitutional change and kills the amendment process—gets matters precisely backward.
Properly understood, originalism preserves the Constitution and its Article V amendment process, the lawful mechanism for change that a constitutional republic requires. By distinguishing between judicial and political processes, originalism provides a vital framework for protecting the democratic legitimacy, popular sovereignty, and the formal amendment machinery at the heart of the American Founding.
Regarding originalism:
Lepore also wrongly claims that interpreting the Constitution according to its original meaning is a recent invention of the political right. She argues that “the word originalism didn’t enter the English language until 1980, and it had virtually no currency before 1987, when Reagan nominated Bork to a seat on the U.S. Supreme Court.” It is extraordinary for a historian to suppose that contemporary usage settles whether the concept of originalism predates the 1980s. Even a cursory review of history reveals that originalism’s roots date back to the early Republic. Many statements of the Founders espouse interpreting the Constitution according to its original meaning.
Regarding originalism and the constitutional amendment process:
The most serious flaw in her article, however, is its central thesis: that originalism hinders the process of constitutional change and exacerbates political polarization by making the composition of the Court more salient. Both are the opposite of the truth. As we have shown in detail elsewhere, it is originalism that protects the process of constitutional change outlined in Article V. In contrast, allowing judges to update the Constitution undermines this process.
The contrast between the 26th Amendment and the failed ERA is instructive:
The need for originalism to support the amendment process is illustrated by the success and failure of the amendments most recently proposed by Congress. For instance, in Oregon v. Mitchell, the Supreme Court correctly interpreted the Constitution’s original meaning to preclude Congress from lowering the voting age to 18 for state and local elections. Because that position did not accord with a consensus of the American people, Congress proposed, and the states ratified an amendment a year and a half after the decision.
In contrast, the Equal Rights Amendment (ERA) likely failed due to the Court’s nonoriginalist approach. The Court had already updated the Equal Protection Clause in a nonoriginalist manner, providing substantial rights to women and making the ERA seem less necessary. And its reputation for judicial activism made it less trustworthy. Not surprisingly, one of Phyllis Schlafly’s arguments against the ERA was that the Supreme Court could not be trusted to interpret the amendment faithfully, and that it would instead use it to impose same-sex bathrooms and other extravagant notions. In short, because the Court had already granted many women’s rights through judicial rulings—and because activists like Schlafly distrusted how judges might interpret a new amendment—momentum for the ERA dissipated.
Read the whole thing!
Posted at 8:00 AM