I have a short comment, How a Theory Can Make a Difference, reflecting on what it means for a constitutional theory to mean something, to make a difference. The piece is a response to Professor Sherif Girgis’s excellent lecture for the Florida Law Review on originalism and the problem of theoretical non-distinctiveness. I have a bit of fun in the piece, thinking about an old short story by Nathaniel Hawthorne called The Hall of Fantasy. Here’s the start of the piece:
~ “Come,” said I to my friend …“let us hasten hence, or I shall be tempted to make a theory, after which there is little hope for any man.” Nathanial Hawthorne, “The Hall of Fantasy”
In Nathanial Hawthorne’s short story, “The Hall of Fantasy,” a writer dreams he is being guided through a realm where the greatest theorists across the domains of human experience are assembled—the sages of poetry, industry, technical invention, and finally the mighty “reformers” “whether in physics, politics, morals, or religion.” “There is no surer method of arriving at the Hall of Fantasy,” the narrator remarks, “than to throw one’s-self into the current of a theory.” Yet he also observes that these stupendous minds can become so taken with their ideas that they mistake them for the one true reality—like possessing “some crystal fragment of the truth, the brightness of which so dazzled them that they could see nothing else in the wide universe.”1 And so they remain in the Hall, never setting foot in the world, and never making a difference to it.
