Document Type

Article

Publication Date

2025

Abstract

Professor Sherif Girgis argues in his rich Lecture that originalism as a theory of constitutional law sometimes still makes a difference, but sometimes no longer does. The difference originalism once purported to make can no longer be defended because originalism has become far closer to its onetime nemesis—common law constitutionalism—than it once was, or once was thought to be. The difference that originalism still makes is real, Professor Girgis says, but is difficult to quantify or theorize. The Lecture is punctuated with genial insight about the academy and the courts, but it concludes on a doleful note: originalism just does not make such a big difference, and that decreasing difference will matter for motivating it.8 Just as watered-down religions see the faithful depart in search of stronger gods, watered-down constitutional theories will struggle to retain the old loyalties. I want to offer three brief reflections on Professor Girgis’s Lecture.

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