Justice Kagan often asks just the right question in statutory construction cases, and she should carry her logic over to constitutional questions as well.
In a previous post, I discussed the view of Barry Weingast and his coauthors as to what makes for the stability of a constitution. Weingast argued that there are three basic conditions needed for constitutional stability. First, the Limit Condition: having a constitution that imposes significant limitations on what the government may do, so that people do not have strong incentives to take extraconstitutional action to prevent the other party from securing power. Second, the Consensus Condition: having a constitution that makes clear what are constitutional violations, so that the people can unite together to stop the government from taking such unconstitutional actions. Third, the Adaptation Condition: having a constitution that allows for adaptation so that when social or other changes occur, the constitution can be modified to continue to satisfy these three conditions.
I want to argue that these conditions are much better satisfied when the constitution is interpreted in an originalist way. Here I will be talking about the U.S. Constitution.
The Limit Condition is better satisfied by following the original meaning of the Constitution. If the original meaning is not followed, then it becomes unclear what limits the Constitution actually imposes. Interpreters can modify its meaning to a significant degree. Thus, people may fear the exercise of power by a government because that government may exercise dangerous powers that are currently not allowed, but will be permitted when the Supreme Court (or other actor) reinterprets the Constitution.
It is true that a nonoriginalist interpretation of the Constitution might impose a significant number of constitutional limitations. But the Constitution’s original meaning also imposes significant limitations and these are worth more under originalism than the nonoriginalist interpretations are worth under nonoriginalism, since the originalist limitations can only be changed with a constitutional amendment.
The Consensus Condition is also better satisfied by following the Constitution’s original meaning. Under originalism, there is an objective meaning to the Constitution. By contrast, under nonoriginalism, the matter turns to a significant degree under what the interpreters believe would be a good idea – interpreters who are appointed by the government. It is true that people sometimes disagree about the original meaning, but the original meaning is more constrained than the evolved meaning under nonoriginalism.
Finally, the Adaptation Condition is also better satisfied by following the Constitution’s original meaning. Unlike the judicial updating of living constitutionalism, the supermajoritarian process of constitutional amendment protects against changes in the Constitution that could pose dangers to important parts of the country. While many people argue that the supermajoritarian amendment process is too strict, John McGinnis and I maintain that it works fine so long as the Supreme Court does not supersede it with judicial updating.