Hello Citizens. Since this pirate excerpt doesn't really delve into my thoughts on originalism vs living constitutionalism, I'm.pasting the text of the chapter that does. The chapter is called
A COMPLETE LISTING OF ALL ARGUMENTS FOR AND AGAINST ORIGINALISM THAT EVERYONE WILL AGREE IS ABSOLUTELY DEFINITIVE AND ERROR-FREE
Hello Citizens. Since this pirate excerpt doesn't really delve into my thoughts on originalism vs living constitutionalism, I'm.pasting the text of the chapter that does. The chapter is called
A COMPLETE LISTING OF ALL ARGUMENTS FOR AND AGAINST ORIGINALISM THAT EVERYONE WILL AGREE IS ABSOLUTELY DEFINITIVE AND ERROR-FREE
And I'm sure everyone will find it just that, definitive and error-free!
(Part 1 of 5)
Over the past few months, I’ve been collecting arguments from both sides of the originalism debate. I’ve written them up in a leather-bound notebook, and I refer back to them often. In case they might help when you are discussing the Constitution with friends over some tankards of ale, here are five major objections to originalism, along with some of the responses.
OBJECTION 1
Why should we be bound by a 237-year-old piece of parchment?
The Constitution was written by smart men, this objection says, but they were smart men in 1787. They didn’t know about germ theory. They could not have foreseen the internet, much less ChatGPT, much less deep-fake revenge porn. Why should we bind ourselves to their ideas when the world is so radically different?
ORIGINALIST RESPONSE: An originalist would say that we should follow the original meaning of the Constitution because the alternative is chaos. The Constitution is written. It is like a contract. Imagine you hire a contractor and give this person a blueprint, but the contractor says, “Oh, I decided to move the sink into the bedroom because it’s a living contract.” For a society to function, you need stability, predictability, and the rule of law. If judges can just change the Constitution to suit their whims, you undermine all three requirements.
LIVING CONSTITUTIONALIST COUNTERPOINT: Actually, that blueprint metaphor is flawed, a progressive might respond. Here’s a more accurate blueprint metaphor for the Constitution, in the words of New York Times writer Ezra Klein:
Imagine I gave you the blueprint of a boat. . . . [S]o you build the boat, and then as soon as you get out on the sea, you realize, oh, there’s this or that problem, we need to make this improvement over time.
You build out new parts of the boat, you move the bathroom, you change some pieces because it’s leaking. And you sail the boat for 200 years. And then later on, some set of crewmembers say, “Actually, going forward, all repairs must be made explicitly and only based on the original blueprint. And also things we have added need to be taken away based on the blueprint.” All you’re going to get is a boat that sinks.*
OBJECTION 2
If originalism were properly applied, we’d live in a barbaric country that allowed for the flogging and branding of criminals.
One of the strongest objections to originalism comes from none other than originalist hero Justice Antonin Scalia himself. In 1988, Scalia gave a famous speech called “Originalism: The Lesser Evil.” Scalia argued that both sides—originalism and nonoriginalism—have flaws. In the end, he unsurprisingly comes out in favor of originalism, whose flaws he says are milder. But his critique of his own preferred theory is biting. Namely:
In its “undiluted form,” Scalia said, originalism would lead to barbaric laws. It is “too bitter a pill” to swallow. Consider the Eighth Amendment, which forbids “cruel and unusual punishments.” Scalia believed that the death penalty was not cruel or unusual, since it was common in 1791 and capital crimes are mentioned in the Constitution.
But it’s not just the death penalty. Public lashing and branding are also, technically, not cruel and unusual under originalism, because they weren’t cruel and unusual in 1791, Scalia said. Now imagine if Arkansas enacted a new law permitting those punishments today? No sane judge would let that law stand.
Scalia continued: Well, an originalist might respond, the founding generation meant for the phrase to evolve: “ ‘cruel and unusual’ originally meant ‘cruel and unusual for the age in question’ and not ‘cruel and unusual in 1791.’ ” Scalia finds this argument to be weak sauce. What’s the evidence the founding generation thought that the meaning should evolve? Scalia sees no convincing evidence.
If Scalia’s right, this is an enormous problem for originalism. It means that true originalism would allow people in 2024 to be flogged and branded. Which no respectable judge would allow. Which means your average originalist is not a true originalist but instead, in Scalia’s words, a “faint-hearted originalist.”
ORIGINALIST RESPONSE: Georgetown University law professor Randy Barnett gave a speech in 2011 rebutting Scalia’s fainthearted claim. Barnett said that Originalism 2.0 (the version about public meaning) can hold up to Scalia’s critique. Originalism 2.0 says that flogging is unconstitutional. This is because the public meaning in 1791 was that all cruel and unusual punishments were banned. Because we have since become aware that flogging and branding are cruel, they are therefore unconstitutional.
I'm pretty sure that a delegate at the Constitutional Convention thought the prohibition on cruel and unusual punishment was too vague, or that it shouldn't be included, specifically because he anticipated that people might one day consider flogging to be cruel and unusual. So, at least in this specific instance, I do think the Founders did anticipate that the meaning and application of the standard would change. That said, capital crime and the death penalty are specifically and unambiguously treated in the Constitution. If people want to ban the practice, fine, but the idea that it could be unconstitutional strikes me as inherently false.
Originalism is just a smoke screen to justify conservative opinions.
This critique isn’t about the merits of originalism so much as how judges have applied it. The criticism goes like this: Why do judgments from originalist justices almost always support the conservative agenda? Recent rulings from SCOTUS have been anti-abortion, anti-regulation, pro-religion, and pro–gun rights.
The situation is extremely suspicious. Isn’t originalism supposed to be a neutral, objective method? So why aren’t there more originalist decisions supporting liberal causes? Either the originalist judges are intentionally using originalism as a smoke screen to justify their conservative opinions or they are just benighted victims of confirmation bias, where they only perceive evidence that backs up their preconceptions.
ORIGINALIST RESPONSE: Originalists point out their method doesn’t always result in conservative rulings. Scalia was very proud to have ruled that burning the American flag is protected by the First Amendment despite being repulsed by the action himself. (Ironically, if my First Amendment adviser Jud Campbell is right, the original First Amendment was much more constrained and would not protect flag burning.)
LIVING CONSTITUTIONALIST COUNTERPOINT: Yes, there are exceptions, but they are just that: exceptions. Statistically speaking, justices use originalism to justify overwhelmingly conservative opinions.
ORIGINALIST RESPONSE: Well, maybe it’s just a fact that the original meaning of the Constitution aligns better with the conservative vision of America.
OBJECTION 4
Originalism does not achieve its stated purpose, which is to restrain judges.
One of the purposes of originalism, at least at first, was to restrain judges. Conservatives were upset by the Warren court’s progressive rulings. Originalism was supposed to rein in activist judges. But the opposite has happened. Look at how much SCOTUS’s decisions are upending the lives of everyday Americans. Look at abortion access. With the Dobbs abortion opinion, SCOTUS overturned decades of established law and customs.
ORIGINALIST RESPONSE: Don’t blame SCOTUS, an originalist might say. The justices are simply trying to figure out what the Constitution really means. In fact, judicial restraint isn’t the true purpose of originalism. The true purpose is to uphold the fixed meaning of the Constitution. And if that meaning radically changes America’s direction, so be it.
What’s more, the court is not dictating national policy. It is leaving the issues—such as abortion—up to the voters in each of the states.
LIVING CONSTITUTIONALIST COUNTERPOINT: Saying that originalism leaves the issues up to voters is disingenuous. Republicans control the majority of state legislature seats in America, thanks to gerrymandering and other tactics. So sending issues to the states is not pure democracy. It is rigged toward conservative outcomes.
OBJECTION 5
The Supreme Court’s new emphasis on history and tradition is confusing, arbitrary—and not even originalist.
This objection is not referring to traditional originalism but is about Originalism 3.0, as some are calling it. This new version of originalism, which dominated SCOTUS’s 2022 term, doesn’t merely look at the original meaning of the Constitution. It also looks at what is “deeply rooted in this Nation’s history and tradition.”
For instance, in the Dobbs abortion decision, Justice Samuel Alito said that we need to look at the “history and tradition” of abortion laws in the United States. He referenced laws from the founding through the 1990s. Likewise, in the Bruen gun case, Justice Thomas arrived at his decision by looking at gun laws all the way from 1300s England through the early 1900s.
Critics on both the left and the right have said that this version of originalism isn’t even originalism. Harvard law professor Noah Feldman calls it “historicism.” As he argues in a Bloomberg article, “The would-be originalist majority betrayed originalism, turning instead to an analytic method . . . that is far from the mainstream of American jurisprudence.” Historicism makes judges into historians, a job they are unqualified to do. When judges cite the past, they cherry-pick the history that suits their politics.
Another objection is that history and tradition are not always a wise
guide to current problems. Sexism, antisemitism, and racism all have a long history and tradition.
What’s more, say critics, historicism has led to mass confusion. The lower courts are still trying to figure out the proper historical analogies to apply when ruling on gun laws. As one judge wrote, her job has turned into a “game of historical ‘Where’s Waldo.’ ” Is a spring-operated “trap gun” similar to an AR-15? What is the proper historical analogy for having a gun on a subway? As a New York Times article put it, “Cases now explore weapons bans in early saloons, novelty air rifles on the Lewis and Clark expedition, [and] concealed carry restrictions on bowie knives and eighteenth-century daggers known as ‘Arkansas toothpicks.’ ”
ORIGINALIST RESPONSE: One response is to agree with the critics. Some originalists reject this new emphasis on history and tradition and consider it a betrayal of originalism. We should go back to focusing on the original meaning, they say.
The originalists who do embrace Originalism 3.0 say it’s necessary because it answers questions that original meaning can’t. You can’t base all your decisions on the circumstances in 1789 (or whenever an amendment was passed), because the meaning from that time is not always clear. It only becomes clear in subsequent laws.
Part 3 of 5 (actually I didn't need parts 4 and 5 because I was able to fit it into 3, so this is the final part.. thanks!)
SECTION 2.
Even if you don’t like originalism, you still have to grapple with its main critique of living constitutionalism. Namely, living constitutionalism gives too much power to a group of unelected justices to interpret the Constitution willy-nilly.
There are a couple of ways progressives have responded. One strategy is to combine originalism and living constitutionalism. This tactic gives living constitutionalism an anchor in the text. The basic idea is that you look for the original meaning, but the original meaning at a higher level of generality. So you take a constitutional phrase such as “equal protection” and say it applies to all sorts of situations, such as gay marriage. I’m sure I’m missing nuances, but to me, this combined approach seems like it is just living constitutionalism by another name.
Another response is to stress living constitutionalism’s pluralism. If you are a Supreme Court justice, you should consider a whole bunch of factors when making a decision. Yes, take into account the text’s original meaning. But also consider the consequences to current society, how SCOTUS has ruled in the past, how it would affect the court’s reputation, and what the average American thinks.
The grab-bag approach doesn’t solve the problem completely. Unelected justices still have enormous power to decide our lives. And this pluralistic view won’t satisfy all—or even most—critics. But I like it because there is at least some balancing going on. A pluralistic method, I believe, would make the court less likely to go against the wishes of the majority of Americans.
Plus, it seems traditionally American to me. The Founders were big into balancing. They loved the balance of powers. They thought their health was all about the balancing of bodily humors. (They got the humors part wrong, but balancing, or homeostasis, is, in fact, important.)
I use a balance of factors when I make decisions in my daily life, a sort of board of advisers in my brain. What does logic say? What about my emotions? How will it affect me in the short term and long term? How will it impact my community? Am I setting a good example for my kids? What would my ancestors think? What will my descendants think?
Perhaps you’ve heard of the famous essay by Isaiah Berlin titled “The Hedgehog and the Fox.” It’s based on an ancient Greek idea about two types of thinkers. A hedgehog views the world through a single lens, whether that’s Marxism or Christianity. A fox views it through multiple lenses, combining approaches and strategies. The saying goes, “The fox knows many things, but the hedgehog knows one big thing.” Originalism is a hedgehog approach. The idea is to interpret the Constitution with a single lens: the original public meaning. I prefer the fox’s worldview. I believe flexible thinking leads to better solutions and a better life. Though I do find the parable paradoxical. The very idea of dividing the world into two distinct types of people? That’s a very hedgehog idea. The fox in me doesn’t like it.
"Namely, living constitutionalism gives too much power to a group of unelected justices to interpret the Constitution willy-nilly"
Yep. The entire point of such documents as the Constitution is to prevent rapid and radical change based on the current opinions of a small group of people, especially non-elected people. Don't like SCOTUS? Don't elect Trump / Biden / whomever. Don't like the Constitution? Go through the difficult process of amending it; it's been done.
When Scalia's court decided the Constitution didn't prevent flag burning I hated it, but they were right. And I loved that Scalia and those like him were willing to go against their instincts in order to do the right thing.
This entire piece is undermined by some clearly biased perspectives. The reason there are more conservative legislatures is because of "gerrymandering and other tactics"? Really? You're absolutely right. Every state's citizens sees San Francisco, Portland, Seattle, Detroit, and Chicago, and thinks to themselves, "THAT is EXACTLY how I want to live." This point also ignores the fact that gerrymandering is widespread in Democratic states as well, New York and Oregon being, statistically, two of the most gerrymandered states in the nation.
If you dig deeper into Berlin’s argument, and the fables that precede it (sometimes it’s a cat), it’s an argument for a principled approach to problem-solving and the hedgehog survives due to his simple and unified methodology while the fox faces a paralysis by analysis due to his plethora of disparate options… and dies.
Of course, this is America and, while the hedgehog disappeared from these shores long before Europeans arrived, the fox continues to thrive.
I would encourage you to listen to him. He is a joyful patriot who respects whatever party affiliation or view you hold. He also has a deeper insight into our founding documents than you think:
The fundamental point of conservatism toward the Constitution is: who gets to make changes to laws? Should it be the elected representatives of the people, whether laws passed by Congress & the President or amendments approved by Congress and state legislatures, or should it be unelected judges/justices? Liberals want judges and experts to apply their superior intellect to solving society's problems, regardless of the boundaries set by the Constitution (or laws; see Chevron deference, now thankfully eliminated); conservatives believe that legitimacy derives from the constitutional framework and political decisions within it. Process matters, not just the end result. If the law as written gives a bad result, it's the job of our elected representatives to change it, rather than let judges or agencies act as unaccountable, "benevolent" dictators. As Sarah Isgur puts it on the podcast Advisory Opinions, "Congress, do your job!"
By the way, it is emphatically the duty of the Supreme Court to "go against the wishes of the majority of Americans" when that majority wants to flout the Constitution. Whether it is protecting black schoolchildren in 1950s Little Rock, a Jehovah's Witness who doesn't want to say the Pledge of Allegiance, or a crisis pregnancy center in California that doesn't want to have to advertise where to go for abortions, the Constitution protects the minority from an overbearing government that has majority support, while still leaving ordinary matters of government to majority rule.
Hello Citizens. Since this pirate excerpt doesn't really delve into my thoughts on originalism vs living constitutionalism, I'm.pasting the text of the chapter that does. The chapter is called
A COMPLETE LISTING OF ALL ARGUMENTS FOR AND AGAINST ORIGINALISM THAT EVERYONE WILL AGREE IS ABSOLUTELY DEFINITIVE AND ERROR-FREE
And I'm sure everyone will find it just that, definitive and error-free!
(Part 1 of 5)
Over the past few months, I’ve been collecting arguments from both sides of the originalism debate. I’ve written them up in a leather-bound notebook, and I refer back to them often. In case they might help when you are discussing the Constitution with friends over some tankards of ale, here are five major objections to originalism, along with some of the responses.
OBJECTION 1
Why should we be bound by a 237-year-old piece of parchment?
The Constitution was written by smart men, this objection says, but they were smart men in 1787. They didn’t know about germ theory. They could not have foreseen the internet, much less ChatGPT, much less deep-fake revenge porn. Why should we bind ourselves to their ideas when the world is so radically different?
ORIGINALIST RESPONSE: An originalist would say that we should follow the original meaning of the Constitution because the alternative is chaos. The Constitution is written. It is like a contract. Imagine you hire a contractor and give this person a blueprint, but the contractor says, “Oh, I decided to move the sink into the bedroom because it’s a living contract.” For a society to function, you need stability, predictability, and the rule of law. If judges can just change the Constitution to suit their whims, you undermine all three requirements.
LIVING CONSTITUTIONALIST COUNTERPOINT: Actually, that blueprint metaphor is flawed, a progressive might respond. Here’s a more accurate blueprint metaphor for the Constitution, in the words of New York Times writer Ezra Klein:
Imagine I gave you the blueprint of a boat. . . . [S]o you build the boat, and then as soon as you get out on the sea, you realize, oh, there’s this or that problem, we need to make this improvement over time.
You build out new parts of the boat, you move the bathroom, you change some pieces because it’s leaking. And you sail the boat for 200 years. And then later on, some set of crewmembers say, “Actually, going forward, all repairs must be made explicitly and only based on the original blueprint. And also things we have added need to be taken away based on the blueprint.” All you’re going to get is a boat that sinks.*
OBJECTION 2
If originalism were properly applied, we’d live in a barbaric country that allowed for the flogging and branding of criminals.
One of the strongest objections to originalism comes from none other than originalist hero Justice Antonin Scalia himself. In 1988, Scalia gave a famous speech called “Originalism: The Lesser Evil.” Scalia argued that both sides—originalism and nonoriginalism—have flaws. In the end, he unsurprisingly comes out in favor of originalism, whose flaws he says are milder. But his critique of his own preferred theory is biting. Namely:
In its “undiluted form,” Scalia said, originalism would lead to barbaric laws. It is “too bitter a pill” to swallow. Consider the Eighth Amendment, which forbids “cruel and unusual punishments.” Scalia believed that the death penalty was not cruel or unusual, since it was common in 1791 and capital crimes are mentioned in the Constitution.
But it’s not just the death penalty. Public lashing and branding are also, technically, not cruel and unusual under originalism, because they weren’t cruel and unusual in 1791, Scalia said. Now imagine if Arkansas enacted a new law permitting those punishments today? No sane judge would let that law stand.
Scalia continued: Well, an originalist might respond, the founding generation meant for the phrase to evolve: “ ‘cruel and unusual’ originally meant ‘cruel and unusual for the age in question’ and not ‘cruel and unusual in 1791.’ ” Scalia finds this argument to be weak sauce. What’s the evidence the founding generation thought that the meaning should evolve? Scalia sees no convincing evidence.
If Scalia’s right, this is an enormous problem for originalism. It means that true originalism would allow people in 2024 to be flogged and branded. Which no respectable judge would allow. Which means your average originalist is not a true originalist but instead, in Scalia’s words, a “faint-hearted originalist.”
ORIGINALIST RESPONSE: Georgetown University law professor Randy Barnett gave a speech in 2011 rebutting Scalia’s fainthearted claim. Barnett said that Originalism 2.0 (the version about public meaning) can hold up to Scalia’s critique. Originalism 2.0 says that flogging is unconstitutional. This is because the public meaning in 1791 was that all cruel and unusual punishments were banned. Because we have since become aware that flogging and branding are cruel, they are therefore unconstitutional.
.
I'm pretty sure that a delegate at the Constitutional Convention thought the prohibition on cruel and unusual punishment was too vague, or that it shouldn't be included, specifically because he anticipated that people might one day consider flogging to be cruel and unusual. So, at least in this specific instance, I do think the Founders did anticipate that the meaning and application of the standard would change. That said, capital crime and the death penalty are specifically and unambiguously treated in the Constitution. If people want to ban the practice, fine, but the idea that it could be unconstitutional strikes me as inherently false.
(Part 2 of 5)
OBJECTION 3
Originalism is just a smoke screen to justify conservative opinions.
This critique isn’t about the merits of originalism so much as how judges have applied it. The criticism goes like this: Why do judgments from originalist justices almost always support the conservative agenda? Recent rulings from SCOTUS have been anti-abortion, anti-regulation, pro-religion, and pro–gun rights.
The situation is extremely suspicious. Isn’t originalism supposed to be a neutral, objective method? So why aren’t there more originalist decisions supporting liberal causes? Either the originalist judges are intentionally using originalism as a smoke screen to justify their conservative opinions or they are just benighted victims of confirmation bias, where they only perceive evidence that backs up their preconceptions.
ORIGINALIST RESPONSE: Originalists point out their method doesn’t always result in conservative rulings. Scalia was very proud to have ruled that burning the American flag is protected by the First Amendment despite being repulsed by the action himself. (Ironically, if my First Amendment adviser Jud Campbell is right, the original First Amendment was much more constrained and would not protect flag burning.)
LIVING CONSTITUTIONALIST COUNTERPOINT: Yes, there are exceptions, but they are just that: exceptions. Statistically speaking, justices use originalism to justify overwhelmingly conservative opinions.
ORIGINALIST RESPONSE: Well, maybe it’s just a fact that the original meaning of the Constitution aligns better with the conservative vision of America.
OBJECTION 4
Originalism does not achieve its stated purpose, which is to restrain judges.
One of the purposes of originalism, at least at first, was to restrain judges. Conservatives were upset by the Warren court’s progressive rulings. Originalism was supposed to rein in activist judges. But the opposite has happened. Look at how much SCOTUS’s decisions are upending the lives of everyday Americans. Look at abortion access. With the Dobbs abortion opinion, SCOTUS overturned decades of established law and customs.
ORIGINALIST RESPONSE: Don’t blame SCOTUS, an originalist might say. The justices are simply trying to figure out what the Constitution really means. In fact, judicial restraint isn’t the true purpose of originalism. The true purpose is to uphold the fixed meaning of the Constitution. And if that meaning radically changes America’s direction, so be it.
What’s more, the court is not dictating national policy. It is leaving the issues—such as abortion—up to the voters in each of the states.
LIVING CONSTITUTIONALIST COUNTERPOINT: Saying that originalism leaves the issues up to voters is disingenuous. Republicans control the majority of state legislature seats in America, thanks to gerrymandering and other tactics. So sending issues to the states is not pure democracy. It is rigged toward conservative outcomes.
OBJECTION 5
The Supreme Court’s new emphasis on history and tradition is confusing, arbitrary—and not even originalist.
This objection is not referring to traditional originalism but is about Originalism 3.0, as some are calling it. This new version of originalism, which dominated SCOTUS’s 2022 term, doesn’t merely look at the original meaning of the Constitution. It also looks at what is “deeply rooted in this Nation’s history and tradition.”
For instance, in the Dobbs abortion decision, Justice Samuel Alito said that we need to look at the “history and tradition” of abortion laws in the United States. He referenced laws from the founding through the 1990s. Likewise, in the Bruen gun case, Justice Thomas arrived at his decision by looking at gun laws all the way from 1300s England through the early 1900s.
Critics on both the left and the right have said that this version of originalism isn’t even originalism. Harvard law professor Noah Feldman calls it “historicism.” As he argues in a Bloomberg article, “The would-be originalist majority betrayed originalism, turning instead to an analytic method . . . that is far from the mainstream of American jurisprudence.” Historicism makes judges into historians, a job they are unqualified to do. When judges cite the past, they cherry-pick the history that suits their politics.
Another objection is that history and tradition are not always a wise
guide to current problems. Sexism, antisemitism, and racism all have a long history and tradition.
What’s more, say critics, historicism has led to mass confusion. The lower courts are still trying to figure out the proper historical analogies to apply when ruling on gun laws. As one judge wrote, her job has turned into a “game of historical ‘Where’s Waldo.’ ” Is a spring-operated “trap gun” similar to an AR-15? What is the proper historical analogy for having a gun on a subway? As a New York Times article put it, “Cases now explore weapons bans in early saloons, novelty air rifles on the Lewis and Clark expedition, [and] concealed carry restrictions on bowie knives and eighteenth-century daggers known as ‘Arkansas toothpicks.’ ”
ORIGINALIST RESPONSE: One response is to agree with the critics. Some originalists reject this new emphasis on history and tradition and consider it a betrayal of originalism. We should go back to focusing on the original meaning, they say.
The originalists who do embrace Originalism 3.0 say it’s necessary because it answers questions that original meaning can’t. You can’t base all your decisions on the circumstances in 1789 (or whenever an amendment was passed), because the meaning from that time is not always clear. It only becomes clear in subsequent laws.
Part 3 of 5 (actually I didn't need parts 4 and 5 because I was able to fit it into 3, so this is the final part.. thanks!)
SECTION 2.
Even if you don’t like originalism, you still have to grapple with its main critique of living constitutionalism. Namely, living constitutionalism gives too much power to a group of unelected justices to interpret the Constitution willy-nilly.
There are a couple of ways progressives have responded. One strategy is to combine originalism and living constitutionalism. This tactic gives living constitutionalism an anchor in the text. The basic idea is that you look for the original meaning, but the original meaning at a higher level of generality. So you take a constitutional phrase such as “equal protection” and say it applies to all sorts of situations, such as gay marriage. I’m sure I’m missing nuances, but to me, this combined approach seems like it is just living constitutionalism by another name.
Another response is to stress living constitutionalism’s pluralism. If you are a Supreme Court justice, you should consider a whole bunch of factors when making a decision. Yes, take into account the text’s original meaning. But also consider the consequences to current society, how SCOTUS has ruled in the past, how it would affect the court’s reputation, and what the average American thinks.
The grab-bag approach doesn’t solve the problem completely. Unelected justices still have enormous power to decide our lives. And this pluralistic view won’t satisfy all—or even most—critics. But I like it because there is at least some balancing going on. A pluralistic method, I believe, would make the court less likely to go against the wishes of the majority of Americans.
Plus, it seems traditionally American to me. The Founders were big into balancing. They loved the balance of powers. They thought their health was all about the balancing of bodily humors. (They got the humors part wrong, but balancing, or homeostasis, is, in fact, important.)
I use a balance of factors when I make decisions in my daily life, a sort of board of advisers in my brain. What does logic say? What about my emotions? How will it affect me in the short term and long term? How will it impact my community? Am I setting a good example for my kids? What would my ancestors think? What will my descendants think?
Perhaps you’ve heard of the famous essay by Isaiah Berlin titled “The Hedgehog and the Fox.” It’s based on an ancient Greek idea about two types of thinkers. A hedgehog views the world through a single lens, whether that’s Marxism or Christianity. A fox views it through multiple lenses, combining approaches and strategies. The saying goes, “The fox knows many things, but the hedgehog knows one big thing.” Originalism is a hedgehog approach. The idea is to interpret the Constitution with a single lens: the original public meaning. I prefer the fox’s worldview. I believe flexible thinking leads to better solutions and a better life. Though I do find the parable paradoxical. The very idea of dividing the world into two distinct types of people? That’s a very hedgehog idea. The fox in me doesn’t like it.
"Namely, living constitutionalism gives too much power to a group of unelected justices to interpret the Constitution willy-nilly"
Yep. The entire point of such documents as the Constitution is to prevent rapid and radical change based on the current opinions of a small group of people, especially non-elected people. Don't like SCOTUS? Don't elect Trump / Biden / whomever. Don't like the Constitution? Go through the difficult process of amending it; it's been done.
When Scalia's court decided the Constitution didn't prevent flag burning I hated it, but they were right. And I loved that Scalia and those like him were willing to go against their instincts in order to do the right thing.
This entire piece is undermined by some clearly biased perspectives. The reason there are more conservative legislatures is because of "gerrymandering and other tactics"? Really? You're absolutely right. Every state's citizens sees San Francisco, Portland, Seattle, Detroit, and Chicago, and thinks to themselves, "THAT is EXACTLY how I want to live." This point also ignores the fact that gerrymandering is widespread in Democratic states as well, New York and Oregon being, statistically, two of the most gerrymandered states in the nation.
If you dig deeper into Berlin’s argument, and the fables that precede it (sometimes it’s a cat), it’s an argument for a principled approach to problem-solving and the hedgehog survives due to his simple and unified methodology while the fox faces a paralysis by analysis due to his plethora of disparate options… and dies.
Of course, this is America and, while the hedgehog disappeared from these shores long before Europeans arrived, the fox continues to thrive.
I would encourage you to listen to him. He is a joyful patriot who respects whatever party affiliation or view you hold. He also has a deeper insight into our founding documents than you think:
https://www.econtalk.org/living-with-the-constitution-with-a-j-jacobs/
https://constitutioncenter.org/news-debate/americas-town-hall-programs/living-constitutionally-insights-from-aj-jacobs-and-jeffrey-rosen
The fundamental point of conservatism toward the Constitution is: who gets to make changes to laws? Should it be the elected representatives of the people, whether laws passed by Congress & the President or amendments approved by Congress and state legislatures, or should it be unelected judges/justices? Liberals want judges and experts to apply their superior intellect to solving society's problems, regardless of the boundaries set by the Constitution (or laws; see Chevron deference, now thankfully eliminated); conservatives believe that legitimacy derives from the constitutional framework and political decisions within it. Process matters, not just the end result. If the law as written gives a bad result, it's the job of our elected representatives to change it, rather than let judges or agencies act as unaccountable, "benevolent" dictators. As Sarah Isgur puts it on the podcast Advisory Opinions, "Congress, do your job!"
By the way, it is emphatically the duty of the Supreme Court to "go against the wishes of the majority of Americans" when that majority wants to flout the Constitution. Whether it is protecting black schoolchildren in 1950s Little Rock, a Jehovah's Witness who doesn't want to say the Pledge of Allegiance, or a crisis pregnancy center in California that doesn't want to have to advertise where to go for abortions, the Constitution protects the minority from an overbearing government that has majority support, while still leaving ordinary matters of government to majority rule.