Originalism is not merely a theory of how the Constitution should be preserved but also of how, precisely, it should change.
Extending our prior consideration of organic metaphors in constitutional law into another realm, let us now consider the relationship of body and soul in the Constitution of the United States of America. (An even further extension would take us into the relationship between the providential constitution of the United States and its ratified Constitution, but that has previously been treated thoughtfully by others.)
In one classical understanding tracing back to Aristotle through Aquinas and into the present in various ways, the soul is the form of the body. The soul animates the body and makes it the kind of thing that it is. Applying this analogically to the Constitution of the United States, we can identify the text of the Constitution as its body. And its soul is the jurisprudential understanding that makes the Constitution the kind of law that it is.
For the various provisions of the Constitution to give rise now as the kind of law they did at the times of ratification, it is not enough for the text to stay constant. That is just the body. The same soul, too, must animate it.
It is possible that different jurisprudential understandings informed different provisions of the Constitution, such as those in the original Constitution, those in the first set of amendments, the Reconstruction Amendments, and so on. To figure out the law, we need to grasp those jurisprudential understandings together with the text. For while it is true that the text of the Constitution is law, it is also true the law of the Constitution is a function of the text.
Consider, for instance, the “right of the people to keep and bear arms” as set forth in the Second Amendment. If this is a retained natural right, then its exercise still remains subject to lawful regulatory measures of the sort acceptable within the social contract framework of which retained natural rights are one part. This understanding, in turn, can help us make sense of the move in District of Columbia v. Heller from close textual analysis of the words of the Second Amendment in historical context to the assertion that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Without an understanding of the jurisprudential context for this statement, one might view it as a stipulated list of limitations included in the opinion to ensure enough votes to make it an opinion for the Court. But the broader jurisprudential context helps us to understand why the listed rules are “presumptively lawful measures” (as the Court describes them in a footnote).
Whatever the relationship between jurisprudential soul and textual body happens to be for any particular provision of the Constitution, understanding how that relationship works can also help explain one way interpretations of the constitutional text can go wrong—by substituting a different jurisprudential soul for the textual body. Fronting a linguistically plausible interpretation of a word like “liberty” or of a phrase like “equal protection of the law,” for instance, one can infuse a new animating principle into the ratified Constitution. A substitution like this, writ large, is what Jeffrey Pojanowski and I have described Living Constitutionalists as having achieved with respect to the master concept of the Constitution. Their “soul swap,” so to speak, is to replace certain provisions in our ratified Constitution of stipulated positive law with textually identical but radically different provisions that serve as a font of customary positive law.