We will conclude our critique of public meaning originalism by posing the following judicial thought-experiment: What if we were to let the Supreme Court whither away? That is, what if the Senate simply stopped confirming any more new nominees to the Court? Eventually, all of the eight remaining justices would die off, leaving us with no functioning High Court. (Considering that the Supreme Court decides less than 80 cases per year, no one would even notice!) In other words, in place of our current command-and-control unitary national judicial system (see image below), we would prefer instead a more decentralized and “federalist” system of judicial power. Currently, federal appeals courts are divided into eleven separate geographical circuits, plus the D.C. circuit. So, given this existing judicial infrastructure, why not get rid of the Supreme Court and let the judges of each circuit interpret the Constitution as they see fit, using whatever theory of interpretation they prefer. Such a decentralized system of interpretation would reduce the stakes of constitutional litigation and might even produce a constitutional market of sorts, with different circuits offering different visions of the Constitution. People and firms could then relocate to their preferred circuits …
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