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Florida Law Review

Abstract

I want to offer three brief reflections on Professor Girgis’s Lecture. First, he is convincing about the difference originalism no longer makes: it no longer constrains constitutional judges from introducing their moral or political views into constitutional cases wholesale in a way that distinguishes it categorically from moral-political reasoning in common law judging. Indeed, originalism is sometimes self-conscious about disclaiming any interest in doing just this. The originalism of original authority might also constrain judges by requiring adherence to whatever the legal propositions of the original authority are, but its object is not first-order methodological constraint—that is, constraint as to moral-political reasoning in the outputs of judicial decision.

Second, I am less certain about the difference Professor Girgis says originalism still makes. Originalists, he writes, scrutinize historical materials more “intensely” and assign more weight to history than non-originalists. Yet it is difficult to define intensity in a way that does not flirt with ipse dixit, and even originalists may disagree among themselves about what intensity means. The deeper issue, though, is that there seems to be a missing element in “intensity”—something like the desire to be directed by our collective constitutional history or the wish to connect that history to the present. This emotional disposition depends upon an underlying view that our history is essentially (and with many lapses and ugly exceptions) morally and politically good, honorable, decent, and worth preserving and passing on. One need not be an originalist to feel this way about our constitutional history. But I daresay that most originalists do feel this way, and that many non-originalists do not.

Third, if I am right about this, then this emotional element in historically oriented constitutional theories illustrates something about the relationship between historical theories such as originalism and moral-political theories. There is a real difference originalism has made, but it is one internal to the theory’s own development. The evolution of originalism has shown that historical and moral-political arguments in constitutional theory are not hermetically sealed off from one another. Professor Girgis writes that originalist judges do not reason morally or politically in “palpable” ways and that this distinguishes originalism. One question about this claim is how moral-political reasoning in a theory, once palpated, can remain impalpable.

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