Picking up where I left off on Friday, I want to briefly sketch a quasi-formalist alternative to originalism, what I'll call contemporary meaning formalism ("CMF").
The theory is spelled pretty much the way it sounds:
(CMF) The original text of the constitution and amendments are authoritative, and their terms are to be strictly construed; but they are to be construed according to their contemporary rather than original meaning.
Here, briefly, are the main arguments in favor of CMF as against originalism:
- Determinacy. The contemporary meaning of a constitutional term will be at least as determinate as the original (i.e., centuries-old) meaning. (Which meanings do we have more complete and reliable access to--those of 2007 or those of 1789?)
- Objectivity. In light of (1), above, the contemporary meaning of a constitutional term will be at least as independent of the preferences of judges as the original meaning.
- Popular sovereignty. If legitimacy requires the consent of the governed, then it seems likely that the words as those governed now understand them should be preferred over the words as understood by a centuries-dead polity. (In a slogan: Whereas They were the People, We are the People.)