Memetic Evolutionary Interpretivism – An Adaptive Alternative to Conventional Constitutional Interpretation
The current debate in constitutional interpretivism manifests the irreconcilability of two ideologies. Put simply, one group, the Originalists, believe that under novel circumstances, the Constitution ought to be interpreted based on the meaning of its language at the time it was written. The other group, Living Constitutionalists, believe that the founders intended to draft a document that could change with time so that judges could broaden its applicability without always waiting for an amendment: some passages are literal and inflexible, but others are elastic and can expand to contain new information. Neither side has convinced the other of its merits, and each assumes different quality judgments, thwarting a qualitative analysis of general applicability. Jurists and scholars have spoken this debate in the language of intentionalism, arguing over whose interpretivist rules are the right ones; but that vocabulary stifles the proper inquiry – namely, which expression of the Constitution will allow it to maintain its relevance.
To engage that question, I offer the theory of memetic evolution, which describes the adaptability of cultural information (memes) in changing social environments. I will focus on the expression of two interpretivist memes, Originalism and Living Constitutionalism, in discussing the adaptability of the Constitution generally, as well as exploring other relevant memes to build a broader framework for analysis. This new framework will expose the inevitable failures that flow from thinking in an old vocabulary.
The following article outlines the framework that I will eventually use in a more comprehensive work to provide a qualitative analysis of Supreme Court decision-making:
Free Market Framework Revisited, Part 2 – The Evolution of Corporate Behavior
Just as Richard Dawkins proposed in The Selfish Gene that we should consider biological evolution from the perspective of the biological replicator (the gene), and cultural evolution from the perspective of the cultural replicator (the meme), an evolutionary framework for economics should consider the evolution of corporations from the perspective of the profit motive: if our legal system allows corporations to act as entities (instead of merely viewing them as a bundle of legal rights for their owners), then the profit motive is the most discrete instruction set, the expression of which leads to corporate behavior. Evolutionary theory adequately accounts for changes in corporate behavior by explaining the imitation and internalization of profitable behavior, the systematic removal of unprofitable behavior, and the survival of larger structures – the corporations themselves – only insofar as they are useful to the survival of the profit-motivated behaviors.
