How to Talk About the Constitution
33 Pages Posted: 26 Apr 2013
Date Written: April 25, 2013
For the last thirty years, debates about interpretive methodology have preoccupied academics to the detriment of substantive discussions about constitutional meaning. Scholars have spent all their time talking about talking about the Constitution, rather than just talking about the Constitution. The publication of Jack Balkin’s book Living Originalism provides an auspicious moment to urge abandoning the first project in favor of the second. For all their intensity, debates about constitutional interpretive methodology have had meager payoff. Judges continue to interpret using a familiar collection of sources, which scholars should tap in greater detail in order to consider new constitutional meanings. Making good on this proposal, this Article sketches out how traditional interpretive techniques support something that has not previously been thought to exist – a federal right to a minimally-adequate education. It then concludes by indicating other directions in which robust discussions of constitutional meaning might lead.
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