Synthesizing Originalism and Living Constitutionalism

My defense of the idea of a living Constitution and my criticism of the way originalism is currently understood appears in Slate here. As you'll see from the piece, I argue that everybody is actually a living constitutionalist whether they admit it or not, because nobody wants to be bound by the original understanding once they understand what that really entails. Conversely, I argue that living constitutionalists are and should be bound by the original meaning of the constitutional text but not by its original expected application.

This puts me in the same camp for many purposes as someone like Randy Barnett, who regards himself as an originalist, or my colleague Akhil Amar, although in the Slate piece I'm distinguishing myself from and criticizing other people who also regard themselves as originalists (like Scalia and Thomas).

In fact, if my views are originalist in any degree, then it suggests that some forms of originalism and living constitutionalism are fully compatible, rather than opposed, as Justice Scalia contends. That by itself should suggest that the labels "originalist" and "nonoriginalist" may do far less work than people might think.

Perhaps more importantly, it also suggests the possibility of a synthesis of the historical work that originalist scholars have been doing over the past twenty years in uncovering the original meaning and understanding of the constitutional text with the premises of a living Constitution. In fact, I think such a synthesis is not only possible, but highly desirable.