Impeachment: A Citizen's Guide

by Cass R. Sunstein

Whether we are bound by the original understanding depends on whether we conclude, on principle, that we should be bound by the original understanding. Those who reject originalism believe that our constitutional order is far better if we conclude that we are not bound. They believe that at least with respect to individual rights (where circumstances and values change), and perhaps with respect to constitutional structure more broadly (where again, circumstances and values change), we do much better to follow the text and pay respectful attention to the original understanding—without being rigidly constrained by it. In my view, that’s Justice Kennedy’s best argument. He is claiming that our system of rights is better if we take the Constitution to set out broad principles whose particular content changes over time.