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Originalism and ‘accounting for change’

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This week in the penultimate session of the originalism class that I co-teach with Eric Posner, we discussed a set of readings labeled “accounting for change” — Larry Lessig on translation and fidelity, Chris Green on sense and reference, and the opening chapter of Jack Balkin’s book on Living Originalism.

I basically agreed with much of what I read in Balkin, but in part because I saw him to agree with Chris Green. Green’s article remains one of the most important and underrated contributions to originalist theory. The key point is that in trying to figure out when changed circumstances can be accommodated by the text, we should look to what philosophers call the “sense” of the provision (as distinct from its “reference”). If the Constitution says that Congress can create “armies,” then those armies can be of all different sorts (including air units) even though there was no specific example of an aerial army at the time of the founding. If the Constitution refers to “property,” that can include cars, not just buggies. And if the Constitution refers to “cruel and unusual punishments,” then that depends on the test for cruel and unusual punishments, not simply a list of what punishments people might have thought flunked the test.

The result is that some change can be accommodated by the text and some cannot. It is a problem to be solved by looking at the text. As Green puts it, “The choice of language is a choice about what sorts of changes should make a difference to the set of future applications.”

Of course, there is a different sense in which these authors do not account for change. All of them are concerned with trying to adapt the Framers’ commands to new circumstances. None of them think it is appropriate to abandon the commands simply because we are smarter now. (There are two ways to abandon the commands, but one is called Article V, and the other one is called “revolution.”)

Watch out for critics of originalism who conflate the two problems. Eric has not done so, but when you hear the argument that “a genuine textualist, a genuine originalist, would conclude that there was no federal authority to create an air force as a military branch separate from the army and the navy” — look for your wallet, because your pocket is being picked.