Generating Constitutional Meaning

Abstract

Reva Siegel's lecture reflects and is part of a seismic shift in constitu tional theory that has been taking place over the past decade or so, a shift away from how legal scholars have theorized about the Constitution since Brown v. Board of Education.1 Brown was a signal event in constitutional law, and it begat a cottage industry as a remarkable number of the nation's best legal minds turned their attention to developing general theories about how to read the Constitution.2 Largely taken for granted in this post-Brown debate was the question that had preoccupied constitutional discourse for the two centuries before Brown: who should interpret the Constitution? Through most of American history, constitutional controversy had centered around the locus of interpretive authority. There was a general consensus about how the Constitution should be interpreted, a conventional form of legal analysis that mixed arguments based on text, history, precedent, and policy. Given the elasticity of this method, disagreement centered on which institution or institutions had power to interpret: Congress, the President, the courts, the states, or the community at large. After Brown, combatants on both sides came to accept the judiciary as the authoritative interpreter of the Constitution (with the Supreme Court as final arbiter of constitutional meaning), and debate shifted to the question of interpretive methodology. There was profound disagreement about where the Constitution ended and politics began, as well as a broad range of views about how to read the text. But that constitutional law was first and foremost a matter for judges became an accepted norm across the legal and political spectrum. This shared assumption, in turn, had profound con sequences for the kinds of theories that developed, consequences that went largely unnoticed precisely because what was at issue on all sides was how judges should interpret the text, not whether they should do so. The two most important characteristics of this post-Brown scholar ship, which defined constitutional law for nearly two generations, were, first, that it was almost wholly normative in content, and second, that it