The US Constitution: Originalism vs. Textualism

A guest blogger on Balkinization:

My essential pragmatism, furthermore, warns me against any theory named “originalism.” The history of constitutional interpretation demonstrates that immoral (or more politely non-aspirational) outcomes repeatedly stand on refusals to let the meanings (or extensions, or applications, etc) of words change over history, rather than the opposite. For example, I think that most lay persons are unpleasantly surprised to discover that courts enforce only an archaic, technical, narrow meaning of double jeopardy, the right against self incrimination, habeas corpus, and other basic protections against government over reaching. In sum, for an aspirational constitutional doctrine, the default should be modern meaning; the exception should be originalism. (I have argued for one exception, “promise” in Art. I, Sec. 8, cl. 8 is commonly given a modern incorrect reading– but that error is not made because of a conscious decision to use modern language. See Malla Pollack, What is Congress Supposed to Promote?, 80 Nebr. L. Rev. 754 (2001)).

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One response to “The US Constitution: Originalism vs. Textualism

  1. Nothing can be more dangerous than abandoning the originally understood meaning of the text of the Constitution.

    The very purpose of a written constitution is to make change difficult, not to create an empty vessle into which each generation can pour their own meaning into it.

    Furthermore, the legitimacy of judicial review is obliterated absent an originalist reading. Judges are not trained or particularly well suited to judge “the evolving standards of decency” of society. If anything, it is the democratically elected branches of government which are far more legitimately reflective of what today’s society thinks the constitution should mean, and not unelected judges.

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