Talk About Talking About Constitutional Law

20 Pages Posted: 18 Oct 2011  

Adam M. Samaha

New York University School of Law

Date Written: October 17, 2011

Abstract

Constitutional theory branches into decision theory and discourse theory. The former concentrates on how constitutional decisions are or should be made, the latter on how constitutional issues are or should be discussed. For its part, originalism began as a method for resolving constitutional disagreement but it has migrated into discourse theory, as well. Jack Balkin’s “living originalism” illustrates the move. This essay examines inclusive versions of originalism like Balkin’s that permit many different answers to constitutional questions. The essay then suggests pathologies associated with loose constitutional discourse in general. For instance, a large domain for constitutional discourse can crowd out nonconstitutional argument and raise the stakes of disputes in ways that discourage compromise, creativity, and trust. Under certain conditions, loose constitutional discourse is a distraction that cannot moderate societal divisions. At its worst, loose constitutional discourse retards progress toward goals that it is supposed to achieve. We still have much to learn about how constitutional discourse operates in fact and how it interacts with nonconstitutional argument. At the moment, those inquiries probably are more important than more talk about how we ought to talk about constitutional law.

Keywords: constitutional discourse, constitutional interpretation, originalism

Suggested Citation

Samaha, Adam M., Talk About Talking About Constitutional Law (October 17, 2011). U of Chicago, Public Law Working Paper No. 368. Available at SSRN: https://ssrn.com/abstract=1945432 or http://dx.doi.org/10.2139/ssrn.1945432

Adam M. Samaha (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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