• About
  • Contact
  • Staff
  • Home
  • Essays
  • Forum
  • Podcasts
  • Book Reviews
  • Liberty Classics

April 26, 2019|Article V, Howard Gillman, James Madison, Originalism, Progressivism

Originalism Protects the Timelessness of the Constitution

by John O. McGinnis|

Photo by andrey_l (shutterstock.com)

I was grateful to appear with Michael Greve on the panel in which he delivered remarks on originalism that were posted in this space earlier this week.  I also appreciate his kind remarks on original methods originalism, which he seems to consider the least bad of “academic originalism.” Nevertheless, I am in disagreement with some of his claims.

Begin with his view that originalism is new. Mike Rappaport has already contested this claim, so on this point I will be brief. The word may be a neologism, but the concept is old as the republic. Listen to James Madison, father of the Constitution:

The sense is which the Constitution was accepted by the nation is . . . . .  the legitimate Constitution.  And if that not be the guide for expounding it, there can be no security for a consistent and stable . . . exercise of its powers.

If originalism is an “ideology” it is the foundational ideology of American constitutionalism.

And originalism was the way Constitutional law was done until the progressive era came up with the idea of the living constitution, partly under the influence of Darwinian and evolutionary thinking. Howard Gillman, now Chancellor at the University of California, Irvine and no originalist himself, wrote the definitive article, The Collapse of Constitutional Originalism and the Rise of the Notion of the “Living Constitution” in the Course of American State-Building, on this historical arc.  But because originalism is so foundational, even the the New Deal and the Warren Court were not able to kill it. It was always part of American constitutional law, waiting to be revived.

But to me what is most striking about Michael’s position is that he seems at times to adopt the progressive view of an evolutionary rather than a timeless Constitution. Michael calls “a timeless Constitution above all politics” a “mirage.”

But the Constitution itself is indeed in one sense timeless and it is this timelessness that energizes a politics to address change. As I said in my remarks and Mike Rappaport and I have expounded at greater length, the Constitution interpreted timelessly itself contemplates politics to address social change in three ways.

First, the states themselves have ample powers subject to relatively few restrictions. Their experiments to address social change can be readily adopted by other states in a continental republic with a free press.

Second, Congress has substantial but not unlimited powers to legislate. And the powers are often stated as principles, like the Commerce Clause, that expand in scope even if they do not change in meaning as the nation matures. The Necessary and Proper Clause allows them to choose the means to do this, so long as their decisions are bona fide attempts to effectuate these powers and do not try to exercise other “great powers” denied by the enumeration.

Finally, the Constitution creates an amendment process by which to replace provisions that have become outmoded.  And here is where originalism comes in again. The high politics of the amendments will not work without originalism. If judges can change the constitution, which includes interpreting it in ways not contemplated by the Framers, the judiciary rather than the people will control constitutional change. Indeed ordinary politics may be compromised too as people seek to have judges unconstrained by the original meaning do what they cannot persuade legislators to do in legislation.

Thus, the timelessness of the Constitution both constitutes the framework for ordinary politics and protects the framework of the high politics of the amendment process. The timelessness of the Constitution, of course, is importantly qualified by Article V, but that kind of timelessness is needed to allow each generation of the Constitution to engage in politics and above all seize the moment to become Framers themselves.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

About the Author

The Problem with Paris: an Alternative Reading of Pawlikowski’s Cold War
In Empire’s Wake

Recent Popular Posts

  • Popular
  • Today Week Month All
  • The "Pro Bono" Hoax: Part II November 8, 2018
  • The Illogic of Cultural Appropriation February 26, 2019
  • Britain’s Classicist-Politician February 18, 2020
  • The Original Meaning of "High Crimes and Misdemeanors," Part I August 8, 2018
  • Gouverneur Morris on the Preamble to the Constitution March 13, 2019
Ajax spinner

Related Posts

Related

Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

Read More

The Graces of Flannery O'Connor

by Henry T. Edmondson III

O’Connor’s correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

Read More

Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

Read More

James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

Read More

Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

Read More

Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

Read More

Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

Read More

America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

Read More

Recent Posts

  • The Just Restraint of the Vicious

    For some contemporary criminal justice reformers, devotion to ideology leads to illogical conclusions about human nature and character change.
    by Gerard T. Mundy

  • Too Immature to be Punished?

    When I look back on my own life, I think I knew by the age of ten that one should not strangle old ladies in their beds.
    by Theodore Dalrymple

  • A Badge of Discrimination

    The British National Health Service has spoken: Wear the badge or declare yourself to be a bigot.
    by Theodore Dalrymple

  • A Judicial Takeover of Asylum Policy?

    Thuraissigiam threatens to make both the law and the facts in every petition for asylum—and there are thousands of them—a matter for the courts.
    by Thomas Ascik

  • The Environmental Uncertainty Principle

    By engaging in such flagrant projection, the Times has highlighted once again the problem with groupthink in the climate discussion.
    by Paul Schwennesen

Blogroll

  • Acton PowerBlog
  • Cafe Hayek
  • Cato@Liberty
  • Claremont
  • Congress Shall Make No Law
  • EconLog
  • Fed Soc Blog
  • First Things
  • Hoover
  • ISI First Principles Journal
  • Legal Theory Blog
  • Marginal Revolution
  • Pacific Legal Liberty Blog
  • Point of Law
  • Power Line
  • Professor Bainbridge
  • Ricochet
  • Right Reason
  • Spengler
  • The American
  • The Beacon Blog
  • The Foundry
  • The Originalism Blog
  • The Public Discourse
  • University Bookman
  • Via Meadia
  • Volokh

Archives

  • All Posts & Publications
  • Book Reviews
  • Liberty Forum
  • Liberty Law Blog
  • Liberty Law Talk

About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
  • Home
  • About
  • Staff
  • Contact
  • Archive

© 2021 Liberty Fund, Inc.

This site uses local and third-party cookies to analyze traffic. If you want to know more, click here.
By closing this banner or clicking any link in this page, you agree with this practice.Accept Read More
Privacy & Cookies Policy
Necessary Always Enabled

Subscribe
Get Law and Liberty's latest content delivered to you daily
  • This field is for validation purposes and should be left unchanged.
Close