Professor Martin H. Redish is on the warpath. Like General Sherman marching toward Atlanta (or Justin Tuck marching toward Tom Brady), Professor Redish, together with Matthew Arnould, lays waste to every constitutional theory that he encounters. Originalism, with its “belief that constitutional interpretation should be characterized exclusively by an effort to determine the Constitution’s meaning by means of some form of historical inquiry,” generates “an often contrived and opaque veil of historical inquiry” that provides “an ideal smokescreen behind which judges may pursue their personal[,] moral, political[,] or economic goals with relative impunity.” Nontextual theories, for their part, “permit selective manipulation of constitutional doctrine in order to advance narrow political goals” and allow judges “to insert their own values i nplace of democratically sanctioned choices.” Modern constitutional theory, proclaims Professor Redish, is therefore caught between the Scylla of “an often fruitless and strategically manipulative straightjacket of originalism’s supposedly rigid historical inquiry on the one hand” and the Charybdis of “the linguistic chaos and epistemological arrogance of nontextualist inquiry, on the other.” As an alternative, Professor Redish proposes a methodology that uses the contemporary linguistic meaning of constitutional provisions to set outer boundaries for adjudication, supplemented by “use of principled normative inquiry, informed and controlled by a transparent, candid explication of a constitutional provision’s underlying meaning based on the intellectual normative framework chosen to be employed by the jurist.”
No History, No Certainty, No Legitimacy . . . No Problem: Originalism and the Limits of Legal Theory,
64 Fla. L. Rev.
Available at: https://scholarship.law.ufl.edu/flr/vol64/iss6/3