"Originalism" and Technology [12:56 pm]
Because of its defining feature—the requirement that constitutional provisions be construed according to their original meaning—originalist textualism is profoundly affected by advances in science and technology. In cases and controversies in which such advances are centrally involved, originalist jurists are required to discern and apply temporally fixed concepts to circumstances and possibilities that could never have been contemplated by the authors of the Constitution. This collision of fixed meaning and novel realities born of technological progress stands to force a “crisis of construction,” where fidelity to originalist textualism is greatly complicated or costly, and in some cases yields politically undesirable or untenable results.
This crisis can take at least three forms. First, there are crises of application, in which the original meaning of the constitutional provision is clear, but technological advances tempt the jurist to depart from this meaning, since doing so would yield a politically desirable result. Second, there are crises of premises, where the original meaning of the clauses in question is once again clear, but where technological developments undermine the factual premises and assumptions that underlie that original meaning, leading to anomalous and unintended political consequences. Finally, there are crises of meaning, in which it is unclear whether a particular word or phrase of a given constitutional provision contemplates a new activity or concept that only new technology makes possible.
By examining the nature of these crises, and reflecting on the capacity of originalist textualism to resolve them within its own self-imposed limiting principles, we can perhaps learn something in general about how technological innovation can affect constitutional interpretation. And we can consider whether an originalist approach to the Constitution is still feasible or sensible in an age when judges routinely confront complex questions at the intersection of technology and law.