Orin, earlier I think you and Professor Jost were reducing the Constitution itself to the Supreme Court’s opinions about its meaning–or even reducing it to the Supreme Court’s rulings in a given case regardless of whether the Court is even claiming to be interpreting the Constitution rather than interpreting its own prior decisions. Now I think you may be reducing the Constitution to any opinions about its meaning (or vice versa).
In these posts, I never claimed that my opinion about the meaning of the Constitution was itself the “real Constitution.” I merely denied that the Supreme Court’s various opinions about the meaning of the Constitution–or predictions of its future rulings–are the real Constitution. I was responding to the “rhetorical move” that anyone who asserts the Tenth Amendment on a constitutional question is a “Tenther” because the Supreme Court is likely to reject such a claim, and that all constitutional objections to a Congressional mandate to purchase private health insurance are refuted by invoking “the Constitution the Court now recognizes.” Both these rhetorical moves were made before I posted a word in response.
The issue here is not your, my or Pam Karlan’s opinion about the meaning of the Constitution. The question is what is the proper subject of any such opinions? I claim opinions about “constitutionality” should be opinions about the meaning of the written Constitution, which I called the real Constitution. These opinions will differ.
True, this is a normative claim about constitutional discourse–discussions about constitutionality ought to be discussions about the Constitution, not predictions of future Supreme Court opinions–but it is not a normative claim about the meaning of the Constitution itself–that is, a claim about what the Constitution ought to mean.
I am still not sure on what you think opinions about “constitutionality” should rest, except perhaps on predictions on what the Supreme Court will do in the future. Maybe these questions will illustrate how this in not a mere semantic or rhetorical move: In a case of first impression–arguably like Heller–how would you make a constitutional argument based on your prediction of the votes of five justices? What should we have argued in Raich? Should the SG have based his constitutional argument on your predictive assumption about the votes of five justices in cases in which “federalism matters”?
Frankly, I am having a hard time operationalizing your conception of constitutionality based on what you predict the Court will do in a particular case.