Faculty Focus

Jamal Greene

Constitutional Theory

Professor Jamal Greene analyzes how constitutional interpretation has changed in response to cultural and political movements

By Joy Y. Wang

Winter 2010

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For Professor Jamal Greene, studying the Constitution is not merely an exercise in legal scholarship. His ongoing analysis of originalism—the theory that the Constitution should be interpreted strictly according to the original understandings of the founding generation—is also deeply rooted in sociology and political science.

“Originalism is a product of social and political movements,” explains Greene, who has written several academic papers on the topic since joining the Law School faculty in 2008. “Americans really valorize our framers, whereas most countries repudiate the people who made laws in 1787. Our [Supreme Court justice] confirmation process invites the public into the conversation about judicial philosophy and leads to more populist understandings of originalism.”

This past July, Greene also spurred conversations about constitutional interpretation through a series of surveys he conducted with Professor Nathaniel Persily and Harvard University professor Stephen Ansolabehere. The data-gathering initiative asked ordinary citizens whether they believed the Supreme Court should view the Constitution in originalist terms, or whether it should “consider changing times and current realities in applying the principles of the Constitution.”

Greene and Persily found that about four out of 10 Americans believed the Court should only be guided by original intent, a fraction that has remained consistent over the last six years. With that data showing that originalism has taken root in American culture, Greene quickly turned his attention to understanding why 40 percent of Americans support an originalist interpretation of the Constitution.

He notes, for instance, that in the past, originalism gained popularity among those who disagreed with decisions rendered during Earl Warren’s tenure as chief justice of the Supreme Court. The Warren Court, which issued numerous influential decisions on racial segregation and civil rights, was notably liberal—much to the dismay of President Dwight Eisenhower, who nominated Warren on the belief that he was a moderate Republican. “In the 1980s, there was a deliberate movement of lawyers during the Reagan era to reign in the excesses of the Warren Court,” Greene adds. “There are many people who adhere to originalism because it removes decision-making from what they consider to be elite judges.”

Most recently, Greene’s scholarship has focused on originalism in relation to gun rights. The common ground between the two is that both are “cultural movements grounded in morality and a suspicion of elites,” he says. In the 2009 issue of Harvard Law & Policy Review, Greene wrote about the Supreme Court’s 2008 decision in District of Columbia v. Heller, which held that the district could neither ban handgun possession in Washington, D.C., nor require that other firearms be unloaded and disassembled or guarded by trigger lock. The application of the Second Amendment in that case was a prime example of originalism in action, according to the professor.

Greene’s level-headed explanations seem uninfluenced by the fact that originalism is an unpopular concept with some in the legal academy. “Many professors believe the meaning of the Constitution does and should change,” Greene says. Comfortable with delving into an area that might well provoke heated debate among his colleagues, he goes on to describe originalism as “elegant”—much in the way a genetic scientist might describe a strand of DNA as beautiful. Greene carefully explains that he is “neither opposed nor in favor” of originalism. Instead, he is more interested in why so many Americans support the concept.

Greene’s ability to approach a topic from numerous angles while maintaining a neutral perspective can be traced back to his previous career as a reporter for Sports Illustrated. He welcomed the chance to join the legal academia, in part, so that he could write extensively about topics with substantial and lasting meaning. “I wanted to be able to spend time thinking about something that I cared about,” he says. “There’s a place [within law] where you can write what you want to write. I really liked that I could say what I wanted to without space constraints. When you come from journalism, it was liberating to go to a field where the norm is [to write] 30,000 words.”

Greene’s growing body of work on the topic of originalism serves as evidence that he is enjoying the freedom academia provides. He is currently finishing up four papers, and two others are slated for publication this year. Through it all, the Supreme Court will continue to make headline-grabbing decisions on inherently controversial issues, and Americans’ views of judicial intent will also keep shifting—no doubt giving Greene plenty of fodder for additional lengthy articles.

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