Originalism and the 'Challenge of Change': Abduced-Principle Originalism and Other Mechanisms by Which Originalism Sufficiently Accommodates Changed Social Conditions

Abstract

One of the most persistent criticisms of originalism - and also one of the most powerful - is that originalism is not a viable interpretative methodology because of the tremendous change that has occurred since the Constitution's original meaning was created. The Constitution's original meaning arose in contexts so dramatically different from our own, the criticism goes, that a Constitution whose meaning is limited by those contexts would be unworkable in today's world.

This form of criticism of originalism is pervasive. Members of the Supreme Court, many in the legal academy and, indeed, even scholars sympathetic to originalism, find the challenge of change compelling.

Originalism's proponents have not answered the challenge of change. Instead, they have only noted the challenge in passing and infrequently offered terse, often tentative responses. Justice Scalia, the most prominent judicial proponent of originalism, has even conceded the force of the challenge of change. This Article, by contrast, breaks new ground by providing the first systematic argument that originalism can meet the challenge of changed social conditions.

This Article has four parts. First, it explains what originalism is. Second, it reviews the challenge of change. Third, it describes the six interpretative tools that enable originalism to surmount the challenge. Lastly, this Article shows that, despite its ability to meet the challenge of changing social circumstances, originalism retains the virtue of sufficient inflexibility to maintain the "critical bite" necessary to be a principled interpretative methodology.

One of the tools that originalists have used to ascertain the Constitution's original meaning, but which they have failed to articulate, is what I label abduced-principle originalism. I will describe abduced-principle originalism, explain how its use is pervasive, and why it is central to originalism's ability to meet the challenge of change.

Keywords: originalism, constitutional interpretation, change, original meaning, common good