At Law & Liberty, John McGinnis: Originalism Protects the Timelessness of the Constitution (responding to this post by Michael Greve). From the core of the argument:
… [W]hat is most striking about [Professor Greve's] position is that he seems at times to adopt the progressive view of an evolutionary rather than a timeless Constitution. Michael calls “a timeless Constitution above all politics” a “mirage.”
But the Constitution itself is indeed in one sense timeless and it is this timelessness that energizes a politics to address change. As I said in my remarks and Mike Rappaport and I have expounded at greater length, the Constitution interpreted timelessly itself contemplates politics to address social change in three ways.
First, the states themselves have ample powers subject to relatively few restrictions. Their experiments to address social change can be readily adopted by other states in a continental republic with a free press.
Second, Congress has substantial but not unlimited powers to legislate. And the powers are often stated as principles, like the Commerce Clause, that expand in scope even if they do not change in meaning as the nation matures. The Necessary and Proper Clause allows them to choose the means to do this, so long as their decisions are bona fide attempts to effectuate these powers and do not try to exercise other “great powers” denied by the enumeration.
Finally, the Constitution creates an amendment process by which to replace provisions that have become outmoded. And here is where originalism comes in again. The high politics of the amendments will not work without originalism. If judges can change the constitution, which includes interpreting it in ways not contemplated by the Framers, the judiciary rather than the people will control constitutional change. Indeed ordinary politics may be compromised too as people seek to have judges unconstrained by the original meaning do what they cannot persuade legislators to do in legislation.
Posted at 8:31 AM