Evolving Into Originalism
by Conor Friedersdorf
Here's a mischevious take on constitutional jurisprudence:
Ours is a pluralistic society and value change is not one-way. Respect for the founders and an enthusiasm for the values and aims of the original constitution has surged both in legal academia and the broader culture. To interpret precedent in light of an originalist understanding of the meaning, purpose, and values of the imagined original constitution is simply one way to bring changing American values to bear on the text.
To paraphrase Mr Posner, sometimes "judges and elected officials interpret and reinterpret the constitution in light of their own changing originalist scholarship and values, and these interpretations pile up and form a body of political and judicial precedent that certainly bears some resemblance to non-originalist case law in the recent past, but diverges considerably from it." I submit that it's totally arbitrary to embrace the idea of an evolving constitution only so long as it evolves in a liberal or progressive direction. If a large number of ordinary Americans, legal academics, and judges have recently come to venerate the founders and the original meaning of the constitution, there's no reason a living constitution should not reflect that.