The Irrelevance of Writtenness in Constitutional Interpretation

My last two posts discussed different versions of what I have been calling the originalist "argument from writtenness." The first version holds that only originalism is consistent with the primary purpose of written constitutions—namely to subject the power of judges and, through them, other government officials, to fixed constitutional constraints. The second holds that only originalism is consistent with the founders' commitment to a written constitution. For reasons I have already explained, both of these arguments fail to provide a persuasive normative justification for originalism. There is, however, a third and stronger version of the argument, which if true, would provide such a justification. That version holds, in short, that only originalism is capable of explaining our contemporary commitment to a written constitution. Why else, originalists, ask, would we bother keeping such an old text around?

The question is supposed to be rhetorical, but in fact, there are many answers. One can be committed to a written constitution in any number of ways for any number of reasons, the vast majority of which do not entail an originalist interpretive approach. For example, one can be committed to the constitutional text as focal point for legal coordination in the manner of the rules of the road; as a flexible framework for common law reasoning; as a locus of normative discourse in a flourishing constitutional culture; or as one of many legitimate ingredients in a pluralistic practice of constitutional adjudication. Just what these varying forms of commitment entail and what role they accord the written text are complicated questions--too complicated to answer satisfactorily in a single blog post. But if I have succeeded in whetting your appetite, this forthcoming article takes a crack at them, along with several of the other questions I have blogged about over the past few weeks. 

This will be my last post.  Many thanks to the Prawfs crew for having me and to all of you for reading.  I especially appreciate the many thoughtful comments and emails.