At The Economist's "Democracy in America" blog: Constitutions and the crises that warp them.
This short essay is mostly an interesting thought-experiment about applying originalism to the EU treaties, but contains this provocative conclusion:
[D]id America's founders intend the interstate commerce clause to give the federal government authority to legislate Social Security or national health insurance? Who cares? The Europe and America we live in are powerful and prosperous confederations built out of a series of successive legislative and institutional compromises that don't always make obvious textual sense, but that did what political leaders needed to do at the time. We should have arguments about whether or not expansions of centralised authorities are bad for the polity. But they should be argued on their own terms, not in terms of what was in the hearts of the people who signed the original treaty a long time ago.
Well, sure, you could have this view, but then you wouldn't really have a Constitution, as distinct from contemporary policy arguments.
It's worth pointing out that most American originalists wouldn't be looking to see what was "in the hearts" of the Founders, but rather what the text they adopted meant, or at least what they intended the text they adopted to mean. But with that correction, I'm inclined to agree with the dichotomy the post suggests — either look to the original understanding (modified, I would say, to some extent by custom and precedent) or look to "whether or not [proposed laws] are bad for the polity."
What's especially interesting here, I think, is that many people in the United States strive for some sort of intermediate position that rejects pure originalism (or originalism-plus-precedent) but also rejects the pure policy analysis that the post appears to prefer. I'm not sure an intermediate position is possible. It's noteworthy that the post appears simply to assume it's not.
Posted at 7:00 AM