Although the title of this panel is in the conjunctive--Originalism and Pragmatism--people usually assume that we must choose originalism or pragmatism. Pragmatists, such as Justice Breyer and Judge Posner, think it both wise and appropriate to change constitutional norms to serve modern needs. (1) Pragmatists differ from Justice Douglas and other inventionists by giving the political branches what they view as healthy sway, through a Dworkin-like process that treats judges as authors of chain novels. (2) The pragmatist is constrained by what earlier authors have done--but like the inventionists the modern pragmatists insist that in the end how much sway to allow is a question for judges, because judges write today's chapter. Originalists, such as Justice Thomas, deny that the Constitution has changed since its words were adopted; political society evolves informally and incrementally, but legal texts are fixed unless the rules for change (such as statutory or constitutional amendments) have been followed.
I want to defend the assumption of the panel's title--that both originalism and pragmatism play vital roles in constitutional practice.
The case for pragmatism is easy to state. Our Constitution is old, and modern society faces questions that did not occur to those who lived during the Civil War and penned the reconstruction amendments, let alone those who survived the Revolutionary War and wrote the Constitution of 1787. What's more, originalism requires us to understand how the linguistic community that approved the words understood their application. A phrase such as "due process of law" or "commerce among the several states" is so much noise unless linked to the original interpretive community. But language is a social and contextual enterprise; those who live in a different society and use language differently cannot reconstruct the original meaning except by feats of scholarship and cerebration. More often, alas, unsupported and hubristic assertion takes the place of hard work.
New problems pose unanswerable questions to someone who thinks originalism the sole method of interpretation. Denying the obvious gives textualism a bad name. And we have had "new" problems from the start: think for example of the Bank of the United States. When James Madison first considered the Bank's constitutional status (while he was in the House) he thought it beyond the new national government's powers; on second take Madison (as President) signed the bill establishing the Second Bank; and then Andrew Jackson vetoed the bill establishing the Third Bank, issuing a veto message that still repays reading. None of what Madison, Jackson, and their contemporaries did or said was encoded in 1787; most problems lack original solutions. So much is inevitable; the Constitution is a very short document.
But no one who had a hand in creating this nation was so foolish as to think that all interesting decisions are encoded in the original text. The decision was to create a federal republic and let the people work out, through their representatives, the problems of time still to come. We do so pragmatically. How else does democracy work?
When the Bank came to the Supreme Court in McCulloch, the Justices approved that process. The Bank's opponents pointed to two things: the Constitution creates limited federal powers, and nothing authorizes the national government to create financial intermediaries. To charter a bank Congress needed to rely on the power to enact laws "necessary and proper" to put the other powers into effect. But how could the Bank be "necessary"? The nation could survive without a central bank; between 1810 and 1816 it did (and would again between 1836 and 1913). By taking "necessary" strictly, the Court could have set itself up as a potent political force, reviewing the wisdom of laws.
The Court resisted. Chief Justice Marshall explained:
Among the enumerated powers, we do not find that of establishing a
bank or creating a corporation. …