.. We have choices about how we go about interpreting the Constitution. We can look for meaning at levels of abstraction that yield principles applicable to the modern world—and then we can apply them to the modern world, in ways that take into account relevant inputs, such as modern federal statutes, that may color their specific operative meaning in a given context. That’s the approach I tried to follow above. It’s an approach (or really a family of different approaches) that neither ignores, nor fetishizes, constitutional text. We let 1789 have its say but not the last word.
Or alternatively, we can try the approach of all too many originalists: to try our hardest to give 1789 the last word. ..
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