Unoriginal Sin: Misinterpreting the Constitution

Abstract

Without limits, judicial power can never be legitimate. The current debate between originalist and non-originalist scholars of Constitutional Law is really a debate between those who can see this dilemma and those who cannot. The process of interpretation is by definition an originalist enterprise. Any other method of ascribing meaning to the Constitution risks ruining the ability of the third branch of government (already partially handicapped for being the least democratic branch) to check the powers of the activist, and by design more forceful Executive and Legislative Branches. The arguments that original meaning is archaic and inapplicable to the modern world forget that the Constitution provides a perfectly serviceable process to update itself in the form of Amendments.