Mitchell N. Berman & Kevin Toh

91 Texas L. Rev. 1739

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Current proponents of the view articulated by originalists maintain that, subject to a few standard qualifications, judges deciding constitutional cases must enforce the constitutional law.  On the other hand, most proponents of the view articulated by nonoriginalists presumably reject the idea that the constitutional law consists solely of the meanings of the inscriptions in the constitutional text.  Yet, despite such disagreements between originalists and nonoriginalists, their respective views are not, strictly speaking, inconsistent.

In this Article, Professors Berman and Toh seek, first, to discredit the combinability problem and thereby facilitate development and eventual acceptance of pluralistic nonoriginalism. The Article does not solve the combinability problem. Rather, it dissolves it by exposing and making explicit a number of assumptions and predilections among constitutional theorists that are very much dispensable in favor of more credible alternatives. The bottom line, it argues, is that whether an originalist or nonoriginalist view of what our Constitution or constitutional law consists of is better than others depends on the fundamental constitutional facts of our legal system, and that there are no a priori grounds for thinking that a pluralistic nonoriginalist conception of those fundamental constitutional facts is a nonstarter.  Second, the Article seeks to devise a pluralistic nonoriginalist conception of constitutional law that is clear and plausible enough to provide a focal point for debates about constitutional interpretation.