Talk About Talking About Constitutional Law

Constitutional theory branches into decision theory and discourse theory. The former branch 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 initially was promoted as a method for resolving constitutional disagreement, but it has spread into discourse theory as well. Jack Balkin’s “living originalism” illustrates this extension. This Article examines inclusive versions of originalism like Balkin’s that permit many different answers to constitutional questions. The Article 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, conducting those inquiries probably is more important than producing more talk about how we ought to talk about constitutional law.

The full text of this Article is available to download as a PDF.