At Law & Liberty, John McGinnis: Can Modern Originalism Save American Constitutionalism? From the introduction:
The politics of the modern West has been created by two very different revolutions—the American and the French. One of the important differences between the two is their conflicting concepts of a constitution. In his last book, Conservatism: An Invitation to the Great Tradition, the late great philosopher Sir Roger Scruton observed that the American Constitution, in its model for both structure and rights, “was designed to guarantee to the people what they had once enjoyed. It was the recipe for an already established practice rather than a recipe for a new order of things.” Scruton noted, for instance, that the rights provided in the American Constitution had been previously defined at common law. In contrast, the French Declaration of Rights was a product of philosophical reflection, an attempt “to transcribe into politics ideas that had previously no overt presence there and which owed . . . much to the abstract arguments of philosophers.”
The struggle over the interpretation of the United States Constitution is profitably understood as a debate over whether the United States should retain a constitution whose meaning was fixed by reference to established practices that animated the American Revolution or whether it should be changed into a constitution more closely resembling the French Declaration of Rights.
And in conclusion:
The fundamental conflict between the traditions of constitutionalism that Scruton describes has never been more relevant than now, when a new band of anti-liberal philosophes is threatening to dominate our intellectual life. The new ideology on campus, sometimes called the Successor Ideology, is self-consciously post-liberal. It wants to replace the market meritocracy enabled by our amended Constitution of limited government and individual rights with an anti-capitalist identity politics. This social movement is not going to stay on campus but will soon be pushing for its ideas to be impressed in constitutional law. Interpreting the Constitution as a set of abstractions, as did the French revolutionaries and their American living constitutionalist successors, opens a channel for infusing this new ideology into our venerable charter of government. In contrast, originalism correctly conceived anchors the tradition of constitutionalism and provides the most effective protection against this latest enthusiasm of the intellectual class.
At Dorf on Law, Eric Segall responds: Originalism Without Slavery and Sexism is a Dangerous Fiction and Other Absurdities: A Response to Professor McGinnis. In part:
[A]nyone defending the American Constitution as "a recipe for an already established practice" needs to address the evils of slavery, complete subjugation of women, and the limited franchise at the time our Constitution was ratified. As usual, however, and like most originalists, new, old, and in-between, there is no mention of those pernicious practices in McGinnis's post. More on that failing later.
After comparing the [American and French] revolutions, McGinnis says the following:
The struggle over the interpretation of the United States Constitution is profitably understood as a debate over whether the United States should retain a constitution whose meaning was fixed by reference to established practices that animated the American Revolution or whether it should be changed into a constitution more closely resembling the French Declaration of Rights.
What does it even mean to suggest that textually imprecise provisions in the Constitution such as those prohibiting the government from abridging freedom of speech, denying anyone due process of law, imposing cruel and unusual punishments, forbidding unreasonable searches and seizures, and establishments of religion have a "fixed meaning?" This is simply incoherent when it comes to real cases in front of real judges. What implications does the internet have for personal jurisdiction? Are lethal injections cruel and unusual punishments? Which modern technologies constitute unreasonable searches? And is paying union dues "speech"? These are all questions that cannot be answered by reference to the Constitution's "fixed meaning" because of course none of the relevant constitutional provisions has a fixed meaning, and the founding fathers were well aware of that fact.
And in conclusion:
I am not here to praise or damn the French Revolution and, frankly, McGinnis should also stay away from that business. I am here to say that originalists often overlook or minimize how terrible America in 1789 and 1868 was for people of color and women, and they should be careful about describing those eras of American history with such admiration. Additionally, as I have written many times before, originalism is not the tool to limit judicial discretion given the imprecise nature of the litigated Constitution. The only tool that can meaningfully constrain judges is strong deference to other political actors–a tool modern originalists (as oxymoronic as that is) fail to wield as often as non-originalists. McGinnis's descriptions of the divides between so-called originalists and so-called living constitutionalists are as unpersuasive as his over-romanticizing of our founding period is deeply troubling.
Posted at 6:29 AM