The Wages of Constitutional Interpretation

The future of constitutional interpretation is a dynamic amalgam of knowns and unknowns. This article explores three. First, an unknown known: the Court’s embrace of formal equality methodologies, more than originalist methodologies, is driving current conservative changes in constitutional law and ushering in a stale and acontextual bent to constitutional rights. Second, another unknown known: both the Court’s equality and originalist methodologies serve to jettison the longstanding and widespread use of intermediate scrutiny and thereby push the level of protection for rights to the extremes.

Finally, a known unknown: the Court’s embrace of hyper-formal equality and originalist rules transfers hegemonic power over constitutional interpretation to the judiciary at great risk. Given that the Court’s power over constitutional interpretation derives from its popular legitimacy, methods of constitutional interpretation that are divorced from popular input and consequences jeopardize the very power of judicial review.