Sometimes I spend a long time without consciously thinking about a topic, and then when I return to it I have ideas that are new, surprising, and not even deliberate. I’m not sure where they come from, but clearly some part of me was thinking without my realizing it.
I had that happen about originalism yesterday. It occurs to me now, as though it were obvious, that the Constitution is neither entirely what originalists say nor entirely what living constitutionalists say.
I’ll explain what I mean.
Some passages of the Constitution, including particularly the Eighth Amendment, seem to refer to a meaning that the founders themselves *knew* would change over time. I can probably point you to dozens of well-known 18th-century sources that describe how people are expected to gain a more refined sense of cruelty as they grow more civilized. It is an absolute certainty that the founders were aware of this. Any literate person of their time would have known it, and would have realized, on a moment’s reflection, that “cruelty” might mean something different in a century or so.
Other passages seem less open to such an approach. For example, consider the term of office for a Senator. If in the course of American history it happened that the word “six” came through common usage to predominantly mean “a large but indefinite number,” I trust that we would think it completely inappropriate for a Senator to use this change in meaning to hold on to a seat, unelected, for twenty-five years. No: We would say he must remain there for VI years, because VI years is what “six years” meant at the time of the founding. I doubt any living constitutionalist at all would ever disagree on this point.
So… everyone is a little originalist sometimes. And everyone is a little living-constitutionalist sometimes, including even the founders. Properly understood, we need to ask about the particular passage at hand, not the Constitution as a whole.