The Constitution and the Golden Calf – A Response to Randy:

Based on his comment below, I worry that Randy might misunderstand my view on his exchange with Professor Jost. In light of that, I wanted to explain my position a bit more clearly.

  I really don’t care whether we label what the Supreme Court says as what the Constitution “is,” or whether we use that label for what Randy Barnett thinks, or what Pam Karlan or anyone else thinks. My first post noted the common convention of referring to what the Supreme Court has said as what the Constitution “is,” but that is just a convention: I pointed it out only to avoid the confusion that results when we mix conventions without saying so. I am just as happy if we call the Constitution as described by the courts as “Larry,” the Constitution as construed by Randy as “Moe,” and the Constitution as construed by Pam Karlan as “Curly.” They are just labels, and my primary interest is in avoiding confusion among them.

  Of course, Randy is welcome to use his label, in which his vision of the Constitution is “the real Constitution,” while the Constitution that others believe in are false idols. I envision Randy coming down from Mt. Sinai with a copy of Restoring the Lost Constitution, as the Israelites look up from their worship of the golden calf of the United States Reports. My point is only that the choice of label is a rhetorical move, not a jurisprudential one. I recognize it is an important rhetorical move: the believers-in-the-true-God-versus-the-heathens meme has worked for millenia, and I gather from what Randy says that it is a key part of trying to popularize his view of how the Constitution should be construed. But I think it’s important to recognize the rhetorical move.

  Why is it important? I think it’s important because so many people have such different visions of what the true Constitution really is. By and large, those visions tend to match the ideologies of their holders: libertarians envision a libertarian Constitution, progressives a progressive Constitution, conservatives a conservative Constitution. Each group, in good faith, sees its vision as the true Constitution. Given the wide range of views, I think it’s confusing to use labels like “the real Constitution” in a way that avoids recognizing the good faith disagreement about what that real Constitution means.

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