« Who Are the True Heirs of the Reconstruction Republicans?
Mike Rappaport
| Main | Cruz is Eligible, Obviously (UPDATED)
Andrew Hyman »

01/07/2016

Eric Segall: The Constitution Means What Judges Say it Means
Michael Ramsey

Eric Segall (Georgia State University College of Law) has posted The Constitution Means What Judges Say it Means (Harvard Law Review Forum, forthcoming) on SSRN.  Here is the abstract:

Just a few days before the Harvard Law Review published Professor Strauss' Foreward: "Does the Constitution Mean What it Says," where he argued that text and history do not account for the Supreme Court's constitutional decisions, Judge Richard Posner gave a talk in Chicago where he surprised many by saying that he doesn't care what the text of the Constitution says or what people living in the 18th century thought about today's problems. Judge Posner's remarks were a response to a book talk by Professor Randy Barnett who was defending his own "constructive zone originalism." Posner explicitly said that he agreed with Strauss' views that the best descriptive account of the Court's decisions is that they represent constitutional common law.

Although Strauss downplayed the role of text and history in constitutional decision-making in his Harvard Foreward, he also said that it is "never" appropriate to say that text can be ignored. This essay argues that Strauss is incorrect on that point, that Posner's pragmatic constitutionalism is descriptively accurate and normatively appealing, and that both Strauss' and Posner's views better capture constitutional law than Professor Barnett's faux originalism.

Via Larry Solum at Legal Theory blog, who comments:

I believe that Professor Segall's reference to "constructive zone originalism" should be understood as referring to what I have termed the "construction zone" which is a function of two ideas.  The first idea is the fact of constitutional underdeterminacy--the claim made by some originalists (and rejected by others) that the communicative content of the constitutional text underdetermines the legal content of constitutional doctrine and the decision of at least some constitutional cases.  The second idea is the interpretation-construction distinction--the claim by some originalists (and rejected by others) that there is a basic conceptual difference between "interpretation" (the activity of discovering the communicative content of the constitutional text) and construction (the activity of deciding the legal effect to be given to the text.  Thus, a "construction zone" arises when the text is underdeterminate and hence something other than direct translation of communicative content into legal effect is required in order to shape constitutional doctrine or decide a constitutional case.