The Framers’ decision in 1787 to establish a six-year electoral cycle with House elections every two years, presidential elections every four years, and Senate elections every six years, with one third of the Senate turning over in two-year intervals, completely shapes our public life to the present day. The Framers in 1787 put in place powerful institutional actors who would become constitutional interpreters, and they set rules on when and how those actors could be selected.
By creating ex nihilo these institutions, the Framers did get constitutional politics going, as living constitutionalists acknowledge, but they also did quite a bit more to constrain and channel the constitutional politics they started. Before 1789, there was no presidency, no Senate or House of Representatives, and no Supreme or inferior federal courts. Constitution as an historical matter was to set up or constitute the institutions of the national government. Set Up or Constitute the Institutions of the National Government- A first purpose that clearly underlies the U.S. Critically, all of these counsel in favor of an originalist rather than a living constitutionalist interpretation of the text of the Constitution, which would undermine the accomplishment of these purposes at every turn.ġ. Consider the following ten purposes that underlie the U.S. Originalism is grounded in the two-century-long movement toward constitutionalism, and it is behind the U.S. Originalists disagree and think race discrimination will always be unconstitutional unless the Fourteenth Amendment is repealed. Living constitutionalists think racial apartheid could become constitutional again if social attitudes toward race evolve. Ferguson (1896), to the decision in Brown in 1954, down to the present day.
In contrast, originalists think that the Fourteenth Amendment always forbade racial segregation-from its adoption in 1868, to the Supreme Court’s erroneous decision upholding segregation in Plessy v. Board of Education (1954) – a case in which they think the Supreme Court changed and improved the Constitution. Living constitutionalists believe that racial segregation was constitutional from 1877 to 1954, because public opinion favored it, and that it became unconstitutional only as a result of the Supreme Court decision in Brown v. Living constitutionalists believe that the meaning of the constitutional text changes over time, as social attitudes change, even without the adoption of a formal constitutional amendment pursuant to Article V of the Constitution. Originalism is usually contrasted as a theory of constitutional interpretation with Living Constitutionalism. It exists independently of the subjective “intentions” of those who wrote the text or of the “original expected applications” that the Framers of a constitutional text thought that it would have.
The original meaning of a constitutional text is an objective legal construct like the reasonable man standard in tort law, which judges a person’s actions based on whether an ordinary person would consider them reasonable, given the situation. It can also be inferred from the background legal events and public debate that gave rise to a constitutional provision.
The original meaning of constitutional texts can be discerned from dictionaries, grammar books, and from other legal documents from which the text might be borrowed. Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law. Originalism is a theory of the interpretation of legal texts, including the text of the Constitution.
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