How do we evaluate constitutional theories? Professor Christopher Green explains how the philosophical idea of a “truthmaker” helps us to understand the basis for constitutional interpretation. A good constitutional theory will explain the reality described by the Constitution, and a truthmaker is a standard used to judge whether the theory matches the reality. https://youtube.com/watch?v=CKux1AED0yQ
Constitutional ontology is what makes constitutional claims true or false. So if I say something like, "The 14th amendment protects activity X," what am I talking about when I say, "The 14th amendment"? Is there some reality out there that that term points to in virtue of which that claim can be true or false? That's the issue of our constitutional truth-maker. And notice identifying a constitutional truth-maker is not the same as knowing for certain whether that statement is true or false, it's knowing what would make it true or false. So one form of originalism would be that what makes constitutional claims true or false is the meaning expressed by terms in their original context. Originalism and textualism give you two aspects of our constitutional truth-maker. Textualism says where you're looking in order to find the truth maker; it's in the text. And originalism tells you when to look. It tells you to look for what the text expressed in virtue of the linguistic legal conventions of the time. So identifying where and when to look for an answer to constitutional questions, that doesn't give you any guarantee of certainty about whether you're going to find answers, but it tells you where to look and it identifies what would have to be uncertain in order to not to know the constitutional answer. So if you have a constitutional theory and you get your entire notion of constitutional truth-maker wrong, your constitutional theory is not a very good theory. Even if everybody accepts it, acceptance can't be the ultimate criterion of a constitutional theory if it doesn't match the Constitution. If the Constitution refers to some reality, your constitutional theory has to explain the nature of that reality to be a good constitutional theory. A constitutional theory has to identify the things in virtue of which constitutional claims are either true or false. It has to have the constitutional ontology right. Separate from that, your constitutional theory has to know what to do in cases of uncertainty. So if judges are uncertain about constitutional answers, they should defer to legislatures. That sort of rule has to do with constitutional epistemology, not constitutional ontology.
