Perhaps it would be useful to go back one step, to ask why, in the judicial process, "constitutional interpretation" is different than "deciding cases." For parties other than judges, thinking constitutionally may be different than other forms of daily work. For a certain class of Very Important Law Professor, too, the magic of Constitutional Thought deifies mere mortals.

But for judges, engaged in determining who prevails in lawsuits, and even for Supreme Court Justices engaged in some important respects beyond the contours of the case, the fact that a constitutional provision is involved in a problem doesn't transform the problem into Constitutional Interpretation, a different business.

I am trying to show how I think about both the decision of individual cases and the larger context in which cases are decided. Words matter, history matters, facts matter, and the larger understanding of social circumstances matters. What does not matter is what Alexander Hamilton thought.

I'm sure that's an unsatisfactory response. But perhaps it will help us to figure out where to take the conversation next.

ZacharyGross's Journal

To better engage with your ideas, it would be helpful to have a clear picture of your own views about proper methods of constitutional interpretation. You have made a few stray remarks critiquing various forms of originalism, and have made other interpretive points (e.g. about clausification), but I do not recall hearing you describe the key principles of your own approach (and why you think that approach is correct). In particular, I am interested in learning your views on the broader, higher-order interpretive debates (e.g. to what extent is your approach originalist or not?). Could you give me/the class such an account, or point me in the direction of any of your writings that does so?

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