AT A MINIMUM...:

The real problem for both left- and right-antioriginalists is that the U.S. Constitution is difficult to amend without a fair degree of consensus that it should be changed. So people who want to change the Constitution seek easier routes by which they might change the meaning of the Constitution without wasting their time advocating for a constitutional amendment. [...]

The constitutional amendment process imposes non-trivial transaction costs on purpose. So the temptation exists to take a quicker path and use majoritarian successes to appoint judges who will change the Constitution by misusing the judicial power to interpret legal texts, and passing off their personal political views as binding constitutional and statutory law.

There is a cost, however, in reading texts, particularly legal texts, with intentional dishonesty. Doing so debases the language, it debases our political and legal life, and no matter how well-intended, it debases the reader himself or herself. Passing off a convenient faux-interpretation with a wink and a smirk is a short-term remedy with a long-term cost to political culture. It is ultimately a broad form of political corruption. As Howard Gillman put it, "Non-originalism, or some notion of the 'living Constitution,' encourages judges to keep the Constitution relevant for contemporary concerns and purposes but runs the risk that this will lead them to enforce a version of the fundamental law that was never formally authorized by the people."

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