The term "originalism" identifies the traditional, common-sense principle that the meaning of various provisions of the Constitution (and of other laws) is to be determined in accordance with the meaning they bore at the time they were promulgated. The status of originalism as the only legitimate method (or class of methods) of constitutional interpretation inheres in the very nature of the Constitution as law. As Chief Justice Marshall explained in his landmark 1803 opinion in Marbury v. Madison, the Constitution is "committed to writing" so that its "limits may not be mistaken or forgotten." To disregard its limits is to "reduce to nothing what we have deemed the greatest improvement on political institutions — a written constitution."That is the key - stopping the shifting baselines of political discussion. If the Consitution needs to be changed, amend it - there's an amendment process built-in. Don't just read what you want into the Constitution.
It is significant that the term "originalism" appears to be of relatively recent vintage. The reason for this is not that there is anything novel about originalism. Precisely the opposite. Until recent years, originalism had been so unchallenged as constitutional orthodoxy that there was no reason to develop a term that would distinguish it from any rival. As Justice Scalia has put it, "in the past, nonoriginalist opinions have almost always had the decency to lie, or at least to dissemble, about what they were doing." But the rise of the "living Constitution" — the Orwellian euphemism that liberal activists have used to pretend that the Constitution has somehow "grown" to entrench forever their own policy preferences — made necessary a label for what everyone had previously recognized as elementary.
Wednesday, July 13, 2005
Ed Whelan, writing in NRO: