At the Daily Caller, Rob Natelson (Independence Institute): The Supreme Court Just Applied Originalism to an 1855 Treaty, So Why Not to the Constitution? From the introduction:
[Critics of originalism] claim that “originalism” — applying the Constitution as the Founders understood it — is unrealistic or extreme. Some even claim originalism is a new invention, dating only from the Reagan years.
But applying legal documents as their makers intended is the way courts and lawyers interpret most documents, and have done so since the days of the Roman Empire.
Illustrative is last month’s Supreme Court ruling in Washington State Department of Licensing v. Cougar Den.
As the post explains, the case turned on the meaning of an 1855 treaty with the Yakima Tribe, which the Court interpreted according to the meaning it had in 1855. In conclusion: "The case illustrates how judges apply originalism for almost all legal documents — except the Constitution."
I agree. Originalism (though not by that name) is the presumptive approach to legal interpretation, other than for the Constitution: contracts, statutes. treaties, etc. It's true that there are competing theories, but these are largely academic curiosities. It's true there are exceptions, but these are recognized as exceptions to the usual approach. It's also true that interpretive methods for these sources of law are often debated — but the debates are typically between different varieties of originalism (again, not by that name).
The Constitution is treated differently. Originalism is not the presumptive approach. Why should that be so? There may be arguments why the Constitution is different, but the burden, it seems, should be on those who would treat it differently to show why it is different.
Posted at 6:15 AM