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129 Harv. L. Rev. F. 1 (2015-2016)

handle is hein.journals/forharoc129 and id is 1 raw text is: TAKING THE IDEA OF CONSTITUTIONAL MEANING SERIOUSLY Richard H. Fallon, Jr.* David Strauss's Foreword, entitled Does the Constitution Mean What It Says?,' is both provocative and wise. I agree with nearly ev- erything that it says. In particular, I agree that constitutional law fre- quently develops in a common law-like way and that in many cases the language of the Constitution ceases to drive judicial decisions, even though the courts insist on linking their results to the constitutional text. I further agree that this situation poses an interesting puzzle, in- volving why our constitutional practice maintains the kind of connec- tion that it does between the Constitution's language and judicial out- comes. Finally, I believe that Strauss offers fascinating speculations in response to this puzzle. Overall, the Foreword makes a number of im- portant contributions. I do not believe, however, that Strauss ever clearly answers the question that his title poses: does the Constitution mean what it says? To the extent that he does answer it, he appears to do so in the nega- tive. In my view, a negative answer is at least misleading and mostly mistaken. Nor do I believe that Strauss provides the necessary con- ceptual resources for furnishing a good answer to the question that he highlights. In the grand scheme, these are minor criticisms. In view of the many insights that Strauss's Foreword develops, he may well re- gard the question that his title poses as more nearly a rhetorical provo- cation to consider other issues than as a question worth deeply pursu- ing in its own right. For my part, however, I think that answering it with care and in depth - or at least providing the resources to do so - would help Strauss give richer, rather than different, answers to the questions that his Foreword addresses most centrally In this brief Response, I shall, accordingly, first trace what Strauss says in response to his own question, notice a puzzle that his analysis raises, and then seek to lay the conceptual foundations for an answer that I think he should, and quite possibly would, accept: with at most rare exceptions, the Constitution does indeed mean what it says, as long as we understand what it says, as well as what it means, in an appropriately nuanced way. * Ralph S. Tyler, Jr. Professor of Constitutional Law, Harvard Law School. I am grateful to Frank Michelman and David Shapiro for helpful comments on an earlier draft of this Comment and to Ephraim McDowell for research assistance. 1 David A. Strauss, The Supreme Court, 2014 Term - Foreword: Does the Constitution Mean What It Says?, 129 HARV. L. REV. I (2015). I

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