Lael K. Weis (Melbourne Law School) has posted Originalism and Constitutional Amendment (Chapman Law Review, forthcoming) (68 pages) on SSRN. Here is the abstract:
This article examines a problem that constitutional amendment uniquely poses for originalism, namely: how should changes to a constitution’s text that enact a new set of understandings be reconciled with the understandings of the constitution’s framers? This issue poses a significant challenge for originalism, and yet it has been overlooked by scholarship to date. This article is a first effort to tackle this issue. It develops an originalist approach to amendment that identifies which amendments pose the problem and that provides a method for addressing it. In developing this approach, the article’s analysis makes two significant contributions to the evaluation and understanding of originalism. First, it provides a critical missing component of originalist interpretive theory that is needed for its practical application. As the article’s central examples demonstrate, constitutional amendment poses a real challenge for originalism and not a merely hypothetical one—even for old constitutions that have proven difficult to amend. Second, by putting originalism in conversation with current debates about constitutional amendment, the article’s analysis draws attention to implications for issues concerning the scope of the amending power. The originalist approach that it develops places interpretive constraints on the amending power, requiring amenders who wish to override original understanding to do so clearly. This invites comparison with “implicit unamendability” doctrines, a controversial but increasingly common set of practices whereby courts imply strict constraints on the amending power in order to prevent its abuse. This comparison suggests that originalism may provide an attractive—albeit more limited—alternative for those who are concerned about abusive amendment but have reservations about implicit unamendability. In making these two contributions, the article thus helps resituate and reinvigorate interest in originalism, demonstrating that the theory holds broad interest for constitutional theory and practice beyond narrow and technical scholarly debates between originalists and their critics.
UPDATE: At Legal Theory Blog, Larry Solum says "Highly recommended. Download it while it's hot!"
Posted at 6:47 AM