The Constitution Can Do No Wrong

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

You may also like...

8 Responses

  1. “The absolute rule of one person meets this test, but so does a brief text that anyone can read and carry in a pocket.”

    But only so long as the people reading it, and carrying it in their pocket, don’t notice that the government isn’t actually following the text. Which is, of course, the problem with multiplying legal fictions concerning a constitution. If the basis for legitimacy if the text, and any moderately literate person can read the text and see the fictions for fictions, the text actually acts to deprive the government of legitimacy.

    In any event, a weird read. I think if you embrace any more fictions, your connection to reality might be entirely severed… No offense intended, this is more of a commentary on the status of constitutional jurisprudence, which has become so reliant on these fictions that it’s on the verge of jettisoning the actual written Constitution entirely.

  2. Gerard Magliocca says:

    Brett,

    I definitely agree with your last paragraph. As for the first, you could say two things. One — most people don’t see the text as a fiction. Two — if the text were applied literally, I submit that you’d find the results unacceptable.

  3. Bruce Boyden says:

    I really like this essay. In particular, I think there’s something to the third point in Part II, re: ritual and pomp: http://www.concurringopinions.com/archives/2008/03/the_constitutio_2.html

  4. Brett Bellmore says:

    “One — most people don’t see the text as a fiction.”

    I don’t think most people do. They read the text, and see the jurisprudence as a fiction. And don’t think jurisprudence based on fictions is a good thing…

    “Two — if the text were applied literally, I submit that you’d find the results unacceptable.”

    To the extent this is the case, (And I think it’s an exagerated extent.) it’s an argument for amending the text. Living constitutionalism isn’t so much an alternative to originalism, as it is an alternative to actually having a constitution.

  5. Gerard Magliocca says:

    I take it then that you don’t want the Supreme Court to overrule precedents that you think were wrongly decided. An amendment is the way to go if the Justices are mistaken, right?

  6. I’m almost completely at a loss as to how you derive that conclusion from what I wrote. An amendment is the way to go if you want to change what the Constitution means. Since judicial errors don’t change the meaning of the Constitution, amendments are not necessary to correct them.

  7. Gerard Magliocca says:

    Well, but people don’t agree on what the Constitution means. Thus how are we to make the distinction that you’re talking about?

  8. That’s where it gets a bit messy. There are disagreements, and ‘disagreements'; You can argue about shades of gray, and then along comes somebody willing to argue that the Sun is black, or coal is white, and while that’s technically a matter of people ‘disagreeing’, at some point you have to raise the question of whether good faith is actually present, or just abandon language being a useful tool.

    The problem when it comes to constitutional disagreements, is that good faith left the room a long while back. There’s a substantial contingent committed to the position that the Constitution means whatever (they think) is a good idea, regardless of the words.

    So we have to address the fundamental issue of what constitutes good faith disagreements over the meaning of a text. The brute fact of disagreement can’t suffice, in a world where faith is sometimes bad.

    I would argue, for starters, that the halmark of a good faith interpretation of a document, is that somebody would plausibly adopt it even if they didn’t really care what the document meant. That is, the ideal of interpretation is disinterested interpretation.

    Obviously you can see how living constitutionalists reject that right from the starting gate.