This argument somewhat resembles Zeno`s famous paradox, in which Zeno tries to show us that movement is impossible or that an arrow never reaches its goal. Scalia was a little too smart. He understood that the same argument could be advanced on many doctrines that are now at the heart of American constitutional law. With regard to this presentation, the argument does not distinguish between the Constitution as understood by its adoptive parents and the Constitution in practice today. This thicker idea of originalism is very enigmatic for most judges and jurists in Europe; in fact, it is enigmatic to people in most other parts of the world. In no other country do judges of the Constitutional Court use this type of originalism as their dominant theory of constitutional interpretation. Of course, in many legal cultures, you will find examples of what we might call „original arguments,” that is, arguments that refer to the purposes, intentions or idea of being people who have designed a Constitution. Australia is a good example. And they will sometimes find explanations of respect for the persimity and wisdom of the defenders of the Constitution. But as a general approach or philosophy of interpretation, originalism outside the United States is very rare. So when I meet judges and lawyers from other countries, they often wonder, in real guesses, what`s going on between you crazy Americans? We see that you have very eminent judges and jurists who say that we should interpret the Constitution according to the original meaning or the original intent or the initial understanding.
Why do they say that? This contribution describes how constitutional change is made in the United States. American constitutional development draws from two sources: the official one of law and doctrine on the one hand and, on the other hand, through political mobilizations, social influence and cultural changes, that of political parties and civil society. We therefore have a dialectical process, a constant interaction between the constructions created by civil servants in the political branches of government, which, on their assertions about what the Constitution allows or does not allow, and judicial constructions that partially legitimize or legitimize these state buildings or deem them unconstitutional. This is how the U.S. Constitution is constructed in practice. And that`s also how the U.S. Constitution changes. This last idea is very important to my theory.
I see constitutions as a framework for policy, not as completed projects. Constitutions never end. They are like the heraclitus river – they change constantly, and in the same way that you can never enter the same river twice, you can never enter the same constitution twice. This may seem a little strange if one identifies a Constitution only with its written text. After all, the constitutional text cannot change for many years. How then can we say that the Constitution is constantly evolving? The legal structure is the most obvious kind for lawyers. It occurs whenever a judge decides a case and applies teaching, develops doctrine or changes doctrine. The famous case of Brown v. The school board  was decided 60 years ago. The case indicates that national governments cannot separate children and place them in different public schools because of their race. This famous decision is often referred to as the interpretation of the Fourteenth Amendment, but in fact it is technically a construction of the Fourteenth Amendment. Mr.
Brown`s result does not inevitably follow the text of the Fourteenth Amendment. We know this because Brown was not the law for the first hundred years of the history of the Fourteenth Amendment. If, during the debates on the ratification of the Fourteenth Amendment, it had been understood that ratification had had the effect of lifting the segregation of public schools, it would be very unlikely that the amendment had been adopted.