Marc O. DeGirolami (Catholic University of America – Columbus School of Law) has posted How A Theory Can Make A Difference (77 Fla. L. Rev. __ (forthcoming 2025)) (9 pages) on SSRN. Here is the abstract:
Professor Sherif Girgis argues in his rich lecture that originalism as a theory of constitutional law is still unique in some ways, but not in others. I offer three 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 at least something like an analogous way to moral-political reasoning in common law judging.
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. But it seems there is 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.
Third, this emotional element in historically-oriented constitutional theories illustrates something about the relationship between historical theories like originalism and moral-political theories. There is a real difference originalism has made, but it is one internal to the theory’s own development. Historical and moral-political arguments in constitutional theory are not hermetically sealed off from one another. What developments in originalism show is that moral-political reasoning is a part of any constitutional theory that values history. Originalism’s onetime boast, when the theory was purer or sharper, that it had successfully theorized a strict separationism of law and politics, has been shown, by developments within the theory itself, to be untrue. That is a major achievement and, I believe, an important way that originalism has made a difference. It has shown us that constitutional theories that are serious about history are also going to be moral-political theories of some type–indeed, of a distinctive and perhaps even "unique" type. In evolving in this way, originalism may have become less individuated as a theory. The upside, however (and it is a considerable one), is that in working itself impure, originalism now discloses more of reality.
RELATED: Additional commentary on Professor Gergis' lecture is noted here.
Posted at 6:29 AM