So now the ACS is a bunch of originalists

September 12th, 2011

Geoff Stone and William Marshall have put forth a new ACS position paper, titled The Framers’ Constitution: Toward a Theory of Principled Constitutionalism. I find the ACS’s sudden return to originalism (of their own type) quite convenient, and rather unpersuasive. At the 2010 ACS National Convention, ACS President Caroline Frederickson referred to originalism as a “noxious brew.” She compared originalism to a “choking weed” that needs to be rooted out.

But wait, Geoff Stone has somehow discovered that we should adhere to the Framers’ Constitution.

In this issue brief, we set the record straight about conservative constitutional jurisprudence and set forth a principled approach to constitutional interpretation that reflects the fundamental values and aspirations of those who framed the American Constitution over the course of more than two centuries and strikes the proper balance between judicial restraint and judicial activism by focusing on the circumstances in which judicial review is necessary to preserve our constitutional liberties and limitations.

Trust us! Those conservatives are bad originalists. But we’re good originalists.

This understanding reflects an approach that is true to what we might call “The Framers’ Constitution.” It recognizes that the Constitution sets forth broad principles and that a central challenge of constitutional interpretation is to define and then give life and substance to those principles in an ever-changing society. The principles enshrined in the Constitution do not change over time. But the application of those principles must evolve as society changes and as experience informs our understanding.

How is this any different from what liberals previously espoused? The principles do not change, but the application of those principles evolves. What’s the difference? This just sounds like a retread of Breyer’s active liberty.