From Eric Posner: Originalism Class 8: Accounting for Change (responding to this post). Will Baude replies: Originalism and the rule that government actors don't change the Constitution – including this important, but I think controversial, observation:
I would say our current legal rules honor an important relevant principle in the text: government agents are not authorized to make constitutional change. They take an oath, and it is an oath to apply “this Constitution” that we have, and that reflects an important limit on the power that we the people have delegated to them. The people may well have a right to ignore the Constitution, but the government officials who happen to be their agents do not.
Well, first, judges make constitutional change, though perhaps they shouldn't, and perhaps there is a difference between judges and other government officials. (But judges also take an oath to support "this Constitution"). And, second, lots of people think that constitutional change can be made through repeated practices of the executive branch (for example, executive branch practice was a central argument in the recess appointments case). Again, perhaps constitutional change shouldn't be made this way, but I'm puzzled by the claim that it isn't.
Posted at 10:45 PM