Stephen M. Griffin (Tulane University Law School) has posted How to Make the Debate Great: A Reassessment of Originalism vs. Living Constitutionalism (43 pages) on SSRN. Here is the abstract:
Can something truly new be said about the seemingly endless debate between originalism and living constitutionalism? I believe so. In this essay, the third in a sequence of articles about originalism, I use Professor Lawrence Solum’s influential 2019 account of the “great debate” as a foil to investigate where it stands today and where it should go in the future. In using Solum’s essay as my basis for discussion, I am concerned primarily with the structure of the debate rather than providing arguments pro or con. The relevant target is whether the terrain of the debate is well understood by all interested parties.
Originalism’s account of living constitutionalism’s methodology is somewhat static. One of my goals is to demonstrate that this is wrongheaded. Whether considered as a methodology or a normative theory, “living constitutionalism” has not only had a makeover in recent years but is not best understood as the principal competitor to originalism. I contend that the debate has two dimensions, descriptive-explanatory and normative. Respectively, the true competitors to originalism are sophisticated theories of constitutional change and a pluralistic approach to constitutional interpretation which accepts the reality of fundamental normative shifts in historical background circumstances
In Part I, I make four brief observations to approach this complex debate in a considered way. I then move to two extended arguments in Parts II and III. Part II details my claims that the debate has two dimensions and that originalism’s opponents are not best understood by attaching the generic label “living constitutionalism.” Part III extends the discussion of one element in the great debate by explaining why it is plausible to think that the Constitution has changed through “informal” means outside the Article V amendment process. Part IV makes some brief suggestions about how the debate should proceed in the future – really, how the debate should become more of a discussion among interested parties. The ultimate purpose of this essay is the same as Solum’s – to say something useful from a global perspective about the state of the debate between originalists and their opponents.
Posted at 6:06 AM