Beyond Babel: Achieving the Promise of Our American Constitution

This Article completes a therapeutic treatment of the originalism debate. The long-running debate over constitutional originalism is pathological, more confused than insightful or important. This Article completes the course of therapy by sketching the constitutional discourse and practice we may hope for after the debate over originalism is transcended and left behind. In so doing, it disarms the final defense of the participants in that debate in that they have no alternative.

Only by sketching what that alternative is can its existence be proved, and the ideopolises of the protagonists finally be reconstructed. This Article shows the constitutional theory and criticism we may aspire to if we are freed of the bonds of the debate over originalism and its underlying assumptions. First, the Article outlines what a post-debate constitutional decision process would look like if the judicial decision-makers no longer felt compelled to articulate their opinions in the vocabulary of that debate. Second, it describes what constitutional scholarship could look like without the constraints of the Weltanschauung shared by the protagonists in the originalism debate.

Third, the Article gives currency to the claim that abandoning the debate about originalism can revive the public discourse about our Constitution, what it says, what it does not say, and what it should say. Fourth, and finally, the Article suggest how abandoning the perspective of the debate about constitutional originalism frees even the principal protagonists in that debate to engage with the American Constitution--and with those who would apply the Constitution very differently--in a more direct and powerful way. The framework of the originalism debate constrains and distorts the argument and discourse rather than enriches it. At all of these levels, leaving the debate over constitutional originalism behind gives us a revived constitutional discourse and a more robust American Constitution.