Constitutional Theory is Like Toothpaste

Gerard N. Magliocca

We have now found the heart of our disagreement. Jack and some other scholars view originalism (in its more expansive form) as an interpretive theory that is doing meaningful work. I believe, by contrast, that it is now just a brand name that is getting close to becoming a generic term for interpretation. Indeed, originalism may be the most powerful brand ever developed by constitutional theory, which explains why it is being embraced by so many and why it is probably inevitable that it will lose its distinctiveness.

Let me start by saying that I think there is virtually no difference between how Jack and I would approach a constitutional issue, though we would not always agree on the result. He says that he is an originalist. I say that I am not. Does that matter? Well, I suppose not, though I prefer to define my approach rather than having it defined by others.

The more relevant point is that it's getting harder to know what originalism is. Jack is correct to say that not everything can be called originalist. As he points out in his book, if a court says that each state gets four senators, that would not be an originalist interpretation under any definition. Since everybody knows that, though, that isn't helpful to me. Moreover, I think that Jack is wrong when he says that Ronald Dworkin and David Strauss cannot be called originalists under the current meaning of that term. Presumably, they also think that we are bound by the original public meaning of the "hard-wired" constitutional provisions. They just disagree on how we should interpret the original principles that are in the text (such as due process, equal protection, and the Ninth Amendment). Of course, they would not call themselves originalists. And there are important differences between what they do and what many self-professed originalists do. But are they clearly not originalists nowadays? I don't think so.

There is an analogy here to what happens with great constitutional cases. At first, the contest is over whether the case was correctly decided. Eventually, though, a case becomes settled law and the debate turns to a fight over the meaning of that case. Everyone today, for example, thinks Brown is right. They do not agree, though, about what Brown means. Is that a bad thing? Not necessarily, though some might say that the invocation of Brown to support certain results is misleading. The same could be said for originalism. Are we better off with a broad originalist umbrella or a narrow one? Both can work. Instead of "originalism" versus "living constitutionalism," we have "living originalism" versus "expected application originalism." Why is the latter the way things are headed?

The answer is that more and more people are now convinced that originalism (whatever that actually means) is the right way to interpret the Constitution. This is a lasting legacy of the conservative legal movement, and is a subject on which Jamal Greene has done some terrific research. But does that branding improve our understanding of the Constitution?

This will be my last post on this thread (largely because I won't have much time for blogging in the next few days). I do want to close by saying that I have tremendous respect for Jack's work in this area despite my dissent to some of his conclusions. As a wise judge told me many years ago, even the best dissent just means that you failed to persuade the majority.
Posted 1:57 PM by Gerard N. Magliocca [link]