Pragmatism's Role in Interpretation‪.‬

Although the title of this panel is in the conjunctive--Originalism and Pragmatism--people usually assume that we must choose originalism or pragmatism. Pragmatists, such as Justice Breyer and Judge Posner, think it both wise and appropriate to change constitutional norms to serve modern needs. (1) Pragmatists differ from Justice Douglas and other inventionists by giving the political branches what they view as healthy sway, through a Dworkin-like process that treats judges as authors of chain novels. (2) The pragmatist is constrained by what earlier authors have done--but like the inventionists the modern pragmatists insist that in the end how much sway to allow is a question for judges, because judges write today's chapter. Originalists, such as Justice Thomas, deny that the Constitution has changed since its words were adopted; political society evolves informally and incrementally, but legal texts are fixed unless the rules for change (such as statutory or constitutional amendments) have been followed. I want to defend the assumption of the panel's title--that both originalism and pragmatism play vital roles in constitutional practice.