Originalist Fiction as Constitutional Faith

Abstract

My book 'Originalism as Faith' argued that constitutional law is driven by a complex interaction of politics, law, social movements, cultural change, and the Justices' personal values and experiences. Professor Christopher Green’s review of my book argues that original infidelity by the Supreme Court and others reveals little about the Constitution itself; that my book failed to adequately distinguish the Constitution from constitutional law or constitutional meaning from constitutional applications; and that Originalism needs to be evaluated as a theory about how to derive constitutional meaning even if in practice the theory has not yet been implemented by judges in a consistent manner. This response argues that the Constitution itself tells us little about constitutional disputes, and that New Originalism's reliance on the application versus meaning narrative demonstrates that original public meaning has little or no bite in most constitutional cases. Moreover, Professor Green's reliance in his review and his substantial other work on the oath judges take to uphold “this” Constitution (the one ratified by the people of the 18th century as properly amended) reveals little about how constitutional law is made binding on the ground by varied political actors especially the United States Supreme Court. My response concludes that centuries of non-originalist judicial decisions and judgments by other political officials does shed substantial light on the lack of merit of Originalism as viable method of constitutional interpretation, and that Professor Green's oath-based, meaning driven conception of the Constitution in practice is another example of Originalism as fiction.