Faculty Focus

Jamal Greene

Constitutional Theory

Professor Jamal Greene takes a measured approach to examining public opinion of the Constitution

By Joy Y. Wang

Summer 2011

Earlier this year, when lawmakers chose to read the Constitution out loud for the first time in Congress, Professor Jamal Greene applauded the action. But he also took to the editorial page of the New York Daily News to explain why such an apparently simple practice may not have been all that it seemed.

“Many Tea Partiers hope that reading the Constitution will make clear that the framers shared their vision of limited government, robust gun rights and purple mountains dotted with miniature American flags,” Greene wrote. “They will be disappointed. It’s not that the framers would not have shared the policy views of the Tea Party. Some probably would have, others not. It’s more that the Constitution doesn’t tell us one way or the other.”

Greene’s measured perspective is grounded in constitutional theory, which he has taught at Columbia Law School since 2008. For Greene, studying the Constitution is not merely an exercise in legal scholarship, as his work also draws from sociology and political science. He uses a combination of the three fields in his ongoing analysis of originalism—the theory that the Constitution should be interpreted strictly according to the original understandings of the founding fathers.

“Originalism is a product of social and political movements,” explains Greene. “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.”

Greene anticipates spending the next few months examining why originalist thinking seems to conflict with African-American identity. As with many of the thorny topics he takes on, the answer is neither simple nor one-dimensional. “A lot of people think the reason African-Americans might distance themselves from originalist thinking is because they were not represented by the Constitution [in its original form],” Greene says. “But that’s not a satisfying answer. The problem of representation is a problem we all have.” He goes on to note that modern Americans are no longer the same people the framers of the Constitution sought to represent hundreds of years ago.

Greene’s levelheaded explanations seem uninfluenced by the fact that originalism is an unpopular concept with some in the legal academy. He notes that many professors “believe the meaning of the Constitution does and should change,” but Greene is not interested in taking sides on the issue. He describes originalism as “elegant,” much in the way a genetic scientist might describe a strand of DNA as beautiful. Greene carefully explains that his scholarship is “neither opposed [to] nor in favor” of originalism. Instead, he is more interested in studying why so many Americans support the concept.

Greene’s ability to approach a topic from numerous angles while maintaining a balanced perspective can be traced back to his previous career as a reporter for Sports Illustrated. He welcomed the chance to join the legal academy, 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. “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.”

Illustration by Zack Blanton