Since at least the early 1980s, the legal academy has been preoccupied with the question of constitutional interpretation. Not, mind you, the question of what the Constitution actually means. Rather, scholars have been consumed with the question of how the Constitution should be interpreted—what methodology should govern constitutional interpretation. In short, we have talked and talked about how to talk about the Constitution, rather than just talking about it. The publication of Jack Balkin‟s Living Originalism provides just the occasion to suggest it is time for academics to abandon their incestuous and exhausted conversations about interpretive methodology and focus instead on what the Constitution actually means. Balkin‟s rich book makes strong statements about interpretive methodology and provides incisive readings of particular constitutional provisions. Of the two, by far the most successful is the latter. This is not to say we necessarily agree with Balkin‟s particular interpretations, a question we sidestep here. It is rather to say Balkin‟s substantive commitments are interesting and worth fighting about, while his discussion of interpretive methodology is unlikely to take us any place we have not been before. In this piece, we urge a turn away from the longstanding debates over interpretive methodology and toward more actual interpretation. Despite such debates, judges and lawyers find commonality every day in how they interpret the Constitution in the cases they hear and resolve. Here, we advocate adopting this common and familiar method, what one might call “ordinary constitutional interpretation,” and show how in doing so one can come to important and perhaps surprising conclusions about what is part of our Constitution (and what is not).
Solow, Sara A. and Friedman, Barry
"How To Talk About the Constitution,"
Yale Journal of Law & the Humanities: Vol. 25
, Article 6.
Available at: http://digitalcommons.law.yale.edu/yjlh/vol25/iss1/6