Constitutional Theory Debates in a Nutshell (Or a Lot of Them, Anyway)

In Year Zero, a new constitutional provision is enacted that has two provisions, A1 and B1.  In Year X, provisions A1 and B1 no longer seem to make as much sense as they did in Year Zero.  Soon after, the Supreme Court interprets A1 to mean A2 and B1 to mean B2.  A few decades later, American society has embraced A2 as a universal principle.  A1 is not just unacceptable but neanderthal.  In contrast, B2 has become quite controversial, and public opinion is now divided between B1 and B2.

The constitutional debate then proceeds as follows:

Originalist: I think we should interpret the Constitution according to the original public meaning at the time of the Framers.   We should reject B2 and go back to B1.

Living Constitutionalist: Your argument is truly radical.  Although you hide it, your view would require us to reject A2 and go back to A1.  Do you really want to go back to the dark days of A1?

Originalist:  That’s a false example.  I have studied the history carefully, and I think A2 is really the original public meaning of A1. So true originalists get B1 and A2 together — the best of both worlds.

Living Constitutionalist:  You’re being disengenuous: A1 and A2 are obviously different.  And the problem with originalism is that your world is a world of A1.

Originalist:  I disagree, and I’ll also note that you’re being result-oriented. Unlike me, you don’t ask what the true Constitution means. You only care about what strikes you as good policy.   I believe we should go back to the Framer’s Constitution — the Constitution of B1 and A2.

Balkinian Originalist: I think you’re both wrong.  I’m sort of an originalist, too, and according to my version of originalism the Constitution requires both A2 and B2.

Stare-Decisis  Follower: I think you’re all just being result-oriented. Each of you has a theory for reaching results that seem to match your personal preferences.  I think we should just follow existing precedents, as imperfect as they may be, because none of these theories seem very persuasive.

Living Constitutionalist:  That’s not a very satisfying answer, Stare-Decisis Follower.  The implication of your view is that the Supreme Court should never have rejected A1 in favor of A2.  So if we go back to Year X, your world still would be the world of A1.  We need a theory of a living constitution that recognizes the importance of shifts from A1 to A2.   For example, some day it might be clear that we need B3 instead of B2. We need a theory that allows that.

Stare-Decisis  Follower: I like A2 as much as everyone else, but I think it’s better going forward not to let judges just shift from B1 to B2 to B3 as they please. A strong view of stare decisis lets us keep A2 while limiting future shifts like that.

Balkinian Originalist: But you’re wrongly assuming that A2 and B2 are not originalist decisions.  They are.  And I have an originalist case for B3, too.

Originalist: Balkininan Originalist, as much as I like your focus on originalism, I don’t see how you can say B2 (or B3!) is originalist. The original public meaning of B1 obviously is B1.

Tallying up the votes indicates unanimous support for A2, albeit on four different theoretical grounds. On the other hand, perspectives on B1/B2/B3 remain divided, with Originalist favoring B1, Stare-Decisis Follower favoring B2, and Living Constitutionalists and Balkininian Originalist favoring either B2 or maybe B3.

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