Originalism vs. Living Constitutionalism: A Reassessment

Stephen Griffin

I've posted "How to Make the Debate Great: A Reassessment of Originalism vs. Living Constitutionalism" to SSRN.  This essay is the third in a sequence of articles I've written about the state of the originalism debate.  I use Professor Lawrence Solum’s influential 2019 account of the “great debate” as a foil to investigate where it stands today and where it should go in the future. In using Solum’s essay as my basis for discussion, I am concerned primarily with the structure of the debate rather than providing arguments pro or con. 

Originalism’s account of living constitutionalism’s methodology is somewhat static.  One of my goals 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 years but is not best understood as the principal competitor to originalism.  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 reality of fundamental normative shifts in historical background circumstances.

In Part I, I make four brief observations to approach this complex debate in a considered way.  The first is that in evaluating arguments on both sides we need to be alert to the relationship between academic and judicial originalism.  We should not assume that they are independent enterprises. The second is the debate between originalism and living constitutionalism will likely be unproductive unless we distinguish between theories that are offered as descriptions and explanations of American constitutional development and normative theories that prescribe and evaluate, whether interpretive or not.  The third observation is general and not linked specifically to Solum’s essay.  If there is to be a “great debate,” I suggest it is hindered by a relative lack of exemplars (illustrations of originalist methodology prized by nearly all originalists) as well as a standard set of constitutional examples (clauses which nearly all originalists interpret).  The fourth observation examines briefly the origins of the “new originalism” in order to assess whether its critics truly understand its point of view while, at the same time, questioning whether originalists have adequate assessed the challenges posed by doctrines like federalism and separation of powers that have significant nontextual components.

I then move to two extended arguments in Parts II and III.  Part II details my claims that the debate has two dimensions and that originalism’s opponents are not best understood by attaching the generic label “living constitutionalism.”  Part III 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 Article V amendment process.  Part IV makes some brief suggestions about how the debate should proceed in the future – really, how the debate should become more of a discussion among interested parties.  The ultimate purpose of this essay 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.