Creeping Originalism

It’s bad enough that we’re saddled with “originalism” as a theory of constitutional interpretation. But it takes Fred Hiatt & Co. to advance the argument that Congress should be bound by the “original intent” of past laws. What the hell?

Mark Tushnet argued in The New Constitutional Order that the key domestic norm of post-Great Society American constitutionalism was not so much “government can’t solve any problems” as “government can’t solve any more problems.” This would seem to be the reductio ad absurdum of this — Congress gets one crack at the civil rights apple, and if they want to adapt to new problems made clear by the bad judicial decisions of (WaPo-approved) justices, too bad! Bizarre.