Constitutional Interpretation and the 'World Out There': An Introduction to the Symposium

Abstract:     
This short essay was prepared as the introduction to a Brooklyn Law Review symposium issue. The symposium is entitled, Justice Blackmun and Judicial Biography: A Conversation with Linda Greenhouse. The essay considers the connection between constitutional interpretation and real world experience and change. It revisits the debate, for example, over whether the original intent that matters for purposes of constitutional interpretation is the ratifying generation's expectations as to the constitution's application, or whether the relevant intent is solely that concerning constitutional principal. Under the former view, experience and social change have little if any impact on constitutional law. Under the latter view, experience and change may substantially impact constitutional interpretation. The essay connects this discussion to a summary of seven very insightful symposium articles by Dean Harold Koh and Professors Earl Maltz, Nan Hunter, Dena Davis, Jason Mazzone, Chai Feldblum and Andrew Koppelman. Each of the summarized articles considers one or more of the following: descriptive questions as to the relationship between judges' personal experiences and their approach to the Constitution; normative questions as to how much the public should know about the human stories behind constitutional decision-making; and normative questions as to the impact that judges' perceptions of the real world should have on constitutional interpretation.

Accepted Paper Series