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Friday, January 21, 2005

On Originalism and the Changing Constitution

This week I both watched Scalia's defense of originalism in his debate with Justice Breyer and had a discussion in my Constitution and Foreign Affairs class about originalism. I wish Justice Scalia taught the class.

My professor, after a weak effort to defend originalism, confessed that she was not an originalist because she does not think that an 18th century Constitution can effectively deal with modern problems. Because the framers did not consider nuclear war and modern terrorism, the constitution must change to adapt to these needs.

Well, duh.

The issue is not whether the Constitution should change, but what the mechanism for change should be. Change is built into the Constitution through amendment. Thus, any argument against originalism on these grounds has to explain why the amendment process is inadequate. And not only that, but why it will not work to just amend the amendment process.

The argument against originalism has to be both that the Constitution needs to change to adapt, and we need a countermajoritarian body, as opposed to the people, deciding what needs to change. I'm not saying that this isn't a plausible argument, only that the change/not change dichotomy is ridiculously false.


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