In The New Republic (sub. req’d.), Justin Driver makes eight arguments against the originalist views of Justice Scalia. Let’s run through them.

1. The idea of a living Constitution has deeper historical roots than Scalia allows. Fine; the metaphor makes occasional appearances in the first half of the twentieth century. Does anyone really contest the idea that the thinking underlying the metaphor was much more influential in the second half of the century? Or that a lot turns on the chronology ?

2. Scalia admits that he sometimes follows precedents rather than ruling on the basis of a legal provision’s original meaning. Now presumably any legal theory that compromises with precedents that are inconsistent with it has this problem; so why is it a fatal objection to originalism?

3. “[T]he Constitution’s most significant provisions frequently provide little textual guidance. How much process, exactly, is due under the due process clause?” My home-page article attempts some answers to this criticism. Let’s just say for now that we don’t need tons of “textual guidance” to know that when the clause was ratified, nobody thought it meant anything that has much bearing on abortion.

4. Conservatives sometimes pay homage to the living-Constitution metaphor. Justice Alito, during his confirmation hearings, said “the Constitution is a living thing in the sense that matters.” Fine; but his “sense that matters” is almost certainly not identical to what Driver has in mind. The idea matters more than the phrases used to capture it.

5. Originalism is incompatible with Brown, Bolling v. Sharpe, and other cases that are now unquestioned. He’s probably right about that second case. But that doesn’t mean originalism is wrong. It could mean the case was wrongly decided. Some exercises of extra-constitutional judicial power have had positive effects, some negative ones; it’s not at all clear that we’d be worse off if courts had consistently declined to exercise such power. (No Bolling v. Sharpe, but no Civil Rights Cases of 1883 either; and no Dred Scott.)

6. Originalism wrongly assumes that judging is easy and therefore that people who make the wrong call are acting in bad faith. See my article, again, on this one.

7. Originalism subjects us to a “horse-and-buggy Constitution” or a “Rip van Winkle” one. Of course, no actual originalist believes that, say, the Air Force is unconstitutional because planes weren’t around in 1787. In many respects, of course, we are governed by rules put in place in the 18th century–and nobody believes judges can or should do anything about it. We have a two-chamber legislature, a 35-year-old requirement for presidents, etc. Much of the time, the “living Constitution” idea comes into play precisely to prevent us from being governed by our fellow citizens of the present day–as when the courts decide that evolving standards of decency preclude states from imposing the death penalty under certain circumstances. It’s not guys in powdered wigs who we’re stopping from imposing the death penalty in such cases.

8. The alternative to a living Constitution is a dead one. I’d be perfectly happy to defend the view that the Constitution is dead in some senses of the word, but sure, I see the rhetorical weakness. So let’s switch metaphors. A Constitution that’s alive is fine. One that keeps sprouting new mutant heads, not so much.