Article by Stephen M. Griffin
Can something truly new be said about the seemingly endless debate between originalism and living constitutionalism? I believe so. In this Article, I use Professor Lawrence Solum's influential account of the “great debate” as a foil to investigate where the debate stands today and where it should go in the future. Of course, the originalism debate is a moving target, and Solum might not develop his argument in precisely the same way were he to rewrite his 2019 essay today. Nonetheless, it is a useful point of departure, and I am grateful for his continued engagement.
As an originalist, Solum's purpose, strictly speaking, was not to argue for or against any position, but rather, as he stated, “to provide a conceptual vocabulary that clarifies and structures academic discussions of ‘originalism’ and ‘living constitutionalism.”’ In using his essay as my basis for discussion, I am similarly concerned with the structure of the debate—its general outline, as it were—rather than providing arguments pro and con. The relevant target is whether the terrain of the debate is well understood by all interested parties. To be sure, specifying this framework does involve judgments about which arguments are likely to be most productive. By probing the ongoing debate in this way, readers may alter their judgment on where it stands today.
Along this line, Solum's concerns were that the definition of originalism and certain argumentative moves were insufficiently appreciated by originalism's opponents, the “nonoriginalists.” Moreover, a familiar trope of contemporary originalism is that it is “new.” Originalists claim to have overhauled its methodology in the twenty-first century for the better. Perhaps the leading version of the new originalism relies, for example, on the objective construct of “original public meaning” rather than subjective appeals to “original intent.” Originalism today has a high opinion of itself and regards its methodology as more sophisticated than past versions.
Notice, however, that the same cannot be said for originalism's account of living constitutionalism. For a point of view that stresses the evolving nature of the Constitution, its methodology is represented by originalists as static. One goal of this Article 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 times but is not best understood as the principal competitor to originalism in the first place. 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 teaching of those theories, namely, the historical reality of significant normative shifts in background circumstances.
Here is the roadmap for this Article. In Part II, I make four brief observations as a way of approaching this complex debate in a considered way. I then move to two extended arguments in Parts III and IV. Part III details my claims that the debate has two dimensions and that originalism's opponents are not best understood if we use the generic label “living constitutionalism.” Part IV 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 formal Article V amendment process. Part V offers suggestions about how the debate should proceed in the future—really, how the debate should become more of a genuine discussion among interested parties. The ultimate purpose of this Article 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.
About the Author
Stephen M. Griffin, W.R. Irby Chair and Rutledge C. Clement Jr. Professor in Constitutional Law, Tulane Law School.
Citation
100 Tul. L. Rev. 837