Intellectual History and Constitutional Decision Making: A Commentary on Solum’s “Intellectual History as Constitutional Theory”

In his article for this symposium issue of the Virginia Law Review and in other places, Professor Lawrence Solum has set forth an elaborate taxonomy for judges and commentators who want to privilege originalist methods of interpretation and construction in constitutional cases. Solum’s taxonomy addresses several important issues in the philosophy of language that I will not take up in this Commentary. My concern is with the question with which Solum begins his article: What role, if any, should intellectual history play in constitutional theory? My approach to that question bypasses many of the issues to which Solum directs his attention and focuses instead on ones that I believe go to the heart of the question.