Originalism Quotes

How could those who wrote the Constitution possibly understand its meaning better than those who had the experience of observing and participating in its operation? It is one thing to rail against the evils of politically unaccountable judges enlarging constitutional rights beyond the ideas and purposes of their adopters; another to explain why morally sustainable claims of equality be held captive to the extraordinary obstacles of Article V or subject to the partial and incomplete understandings of 1789 or 1868. ~ Jack N. Rakove

I'd say that [Louis] Brandeis practiced a kind of a "living originalism," to use the title of Jack Balkin's great book. He said you start with the paradigm case, which in the case of the Fourth Amendment was these general warrants or writs of assistance, but you define it at a level of abstraction that you can take it into our age and make it our own. ~ Jeffrey Rosen

Progressives did not like the antiquated thinking that saw the Constitution as a barrier to government expansion. The "living Constitution" was born. That benign-sounding phrase (coined later) was conjured up to justify changing the Constitution, without formal amendment, from a limit on power to a blank check. What was impermissible to the federal government by an earlier interpretation became permissible once the Constitution was construed as a evolving document. But by that philosophy, the Constitution is no limit on government power at all. A constitutional government that defines its own powers is a contradiction in terms. ~ Sheldon Richman