by John O. McGinnis, Michael B. Rappaport
August 04, 2014
In the early republic, originalism – the idea that the Constitution should be interpreted according to the meaning that was fixed at the time it was enacted – was commonplace. And though the New Deal, the civil rights movement, and the sexual revolution all witnessed stunning changes to American jurisprudence, originalism is making a well-deserved and long-awaited comeback. The Constitution places a limit on government that protects people’s liberty and preserves a desirable order. The amendment provisions, however, operate to ensure that each generation may contribute to the Constitution based on largely the same procedures. But the supermajoritarian requirement means that, whatever changes are made to the Constitution, must have been enacted through a process which promotes consensus provisions that protect minority rights. Overall, the Constitution functions as fundamental law that may change over time, but only if those changes are likely to have the same desirable qualities as the original Constitution.