Constitutional Originalism

A persistent error in our thinking about the enterprise of society and government and all those concerns about how we should live, and under what laws, and who should be in charge has to do with the idea that there is some golden age in the past when everything was right and leaders were wise. All we have to do is return to the values of that time and all will be well. There are those, for instance, who say that the United States Constitution should be should be read entirely according to the intentions of the original authors, as if they were endowed with some level of wisdom superior to ours. 

This is saying that the United States population reached peak wisdom in the mid-1700’s, which seems like an unlikely situation. It would mean that we have learned nothing since then, and that more than 200 years of thinking about it has not yielded any better ideas than those of a group of people who lived at the very beginnings of the Industrial Revolution, which utterly transformed our lives and gave rise to power structures that were completely new. Don’t get me wrong, I have immense respect for the Founding Fathers, and given the constraints under which they were working they did a monumental job to an extremely high standard. But they were not omniscient, and were far from omnipotent, and they knew it. If they thought that what they were writing should stand for all time, why did they build in the ability to amend it, and give that ability to both Congress and the states?

All written documents share one serious drawback: words and language change their meaning over time. We do not speak the language even of our grandparents, still less of the eighteenth century. There are concepts today that there were not even words for then, and there are words they used that now have opposite meanings.

It makes no more sense to follow the literal meaning of the constitution according to the understanding of the authors than it would to limit yourself to only wearing your grandparents’ clothes. 

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