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Media Paratext and Constitutional Interpretation Media Paratext and Constitutional Interpretation
Benjamin J. Priester
St. Thomas University College of Law
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Benjamin J. Priester, Media Paratext and Constitutional Interpretation, 55 CREIGHTON L. REV. 1 (2021).
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Media Paratext and Constitutional Interpretation
Benjamin J. Priester
*
Abstract: In the fields of media studies and fan studies, the concept of paratext is
an analytical paradigm for understanding how audiences consume and interpret
media texts, such as a novel or movie. Amid today’s media-rich society, it is all but
impossible to encounter a media text in isolation. Rather, we also invariably interact
with a wide variety of associated paratexts, from official materials like trailers or
marketing to unofficial materials like reviews or fan reactions, which play a role in
shaping our interpretation of the core media text. This concept of media paratext
provides a compelling analogy for constitutional interpretation. We likewise do not
interpret the U.S. Constitution in isolation, but always in association with related
texts that inform our understanding of its meaning, such as legal precedent,
historical materials, and scholarly work in relevant disciplines. Moreover, in both
instances the determination of the meaning of the core text readily can be a
contestable and contested endeavor. Ultimately, the comparison between
constitutional interpretation and media paratext refutes the proffered objective of
originalism by demonstrating the impossibility of any aspiration to sever the
interpretation of an iconic text from the full range of paratextual materials that
inform our understanding of it.
I. Introduction
Have you ever felt disappointment that a movie based on a novel didn’t live up to the book?
Experienced confusion or consternation during a film because what you’re watching doesn’t
seem to line up with your expectations generated by the trailer or other marketing? Watched a
movie or television show—or avoided one—because of a recommendation from a friend or a
review from a critic? Become intrigued enough to watch a television series after encountering a
compelling interview with its creator or a cast member? Or become disillusioned with a story
you used to love because of subsequent revelations about its creator?
1
Decided that an
interpretation of a character generated within the fan community is more enjoyable and
entertaining than the official portrayal? Have you ever judged a book by its cover?
Everyone has done some or all of these while making decisions about which works of
entertainment media to consume. That means all of us understand—even if we’re not familiar
with the scholarly label for it—the concept of media paratext.
© 2021 Benjamin J. Priester.
*
Professor of Law, Florida Coastal School of Law. I am grateful to Jeff Powell and Eric Segall for their time and
feedback in reading a draft manuscript which evolved, in part, into this article.
1
The most prominent recent example probably is J.K. Rowling, whose vocally expressed views opposing
transgender rights in the U.K. have alienated many previously devoted fans of the Harry Potter franchise. See, e.g.,
Molly Fischer, Who Did J.K. Rowling Become? Deciphering the most beloved, most reviled children’s-book author
in history, VULTURE (Dec. 22, 2020), https://www.vulture.com/article/who-did-j-k-rowling-become.html. Other
entertainment industry figures include, for example, the well-known allegations against Woody Allen, Michael
Jackson, Kevin Spacey, and Bill Cosby.
Electronic copy available at: https://ssrn.com/abstract=3771460
Priester, Media Paratext and Constitutional Interpretation
2
In the fields of media studies and fan studies, the concept of paratext is one vector for analyzing
and understanding how audiences ingest and interpret media texts, such as a novel or movie.
Amid our media-rich society, after all, it is all but impossible to interact solely with a media text
in isolation. Rather, we also invariably interact with a wide variety of other associated texts —
official materials like trailers or marketing as well as unofficial materials like reviews or fan
reactions—which play a role in shaping our interpretation of the core media text. And this is true
across the range of viewers and readers, from casual consumers to the most dedicated fans. The
scholarly literature on media paratext provides a number of important lessons for better
understanding media industries, audiences, and fandom.
The concept of paratext also offers a powerful analogy for constitutional interpretation. We do
not interpret texts in isolation, but always in association with related materials that inform our
understanding of them. Interpretation of a media text can include insights from academic fields
such as cinema studies or literary theory, from professional perspectives like movie critics and
book reviewers, and from the fan community and the general audience. Similarly, the
interpretation of the U.S. Constitution might involve contributions from theoretical or empirical
work by law professors and experts in other academic disciplines, from skilled professionals like
lawyers and judges parsing and applying doctrinal principles and judicial decisions, and from the
amateur “law office history” that sometimes makes its way into a litigation record.
2
In both
instances, the determination of the meaning of a canonical text is often a highly contestable and
contested proposition.
Ultimately, the analogy to media paratext demonstrates why the proffered objective of
originalism is impossible to attain. Comparing constitutional interpretation to another
interpretive canon with an extensive history of debates and controversies over textual and
paratextual meaning—the Star Wars franchise—illustrates the futility of any approach which
attempts to impose an exclusive method of interpretation upon a core text or to privilege one
particular paratextual source above all others. The analytical and empirical insights from the
media studies and fan studies concept of paratext reinforce the conclusion that the meaning of an
iconic text—including the U.S. Constitution—cannot be not the domain of a particular
perspective or methodology, but rather constitutes a product of consensus among the interpretive
community.
II. Paratext and the Interpretation of its Associated Text
Legal analysis certainly would be simpler if more legal texts actually contained a “plain
meaning” which could be readily discerned and applied. Notwithstanding the assertions of some
legal minds, such as Justice Black in constitutional interpretation and Justice Scalia in statutory
interpretation, textualism alone usually is not dispositive.
3
To be sure, the text of the U.S.
Constitution does contain some provisions which have been essentially uncontestable in their
meaning, such as: the minimum ages for elected Representatives, Senators, and the President;
each state seats two Senators; the District of Columbia is not a state, which is why it has no
Senators and why the Twenty-Third Amendment was necessary to grant it electors in the
2
See, e.g., Saul Cornell, Heller, New Originalism, and Law Office History: “Meet the New Boss, Same as the Old
Boss”, 56 UCLA L. REV. 1095 (2009).
3
See Michael J. Gerhardt, A Tale of Two Textualists: A Critical Comparison of Justices Black and Scalia, 74 B.U.
L. REV. 25 (1994); see also, e.g., ANTONIN SCALIA, A MATTER OF INTERPRETATION (1997); Akhil Reed Amar, 2000
Daniel J. Meador Lecture: Hugo Black and the Hall of Fame, 53 ALA. L. REV. 1221 (2002).
Electronic copy available at: https://ssrn.com/abstract=3771460
Priester, Media Paratext and Constitutional Interpretation
3
presidential Electoral College.
4
In contrast, the Constitution’s crucially important individual
rights provisions—the ones consistently producing constitutional litigation—are famously
indeterminate on the face of the text. To mention a few: what does “the freedom of speech”
mean, what actions qualify as “unreasonable searches and seizures” by the police, and when does
a state deny a person the “equal protection of the laws”? We have long realized that the meaning
we give to these provisions is found beyond the Constitution’s text alone.
Precisely because the U.S. Constitution is not the sort of text that provides large numbers of
definitive answers about its own meaning, for many years legal scholars have drawn upon
insights from other fields or methods of textual interpretation when crafting arguments about
constitutional interpretation. One influential example is Yale professor Akhil Amar’s article in
the Harvard Law Review on “intratextualism”—the method of examining how a text uses the
same words in different passages.
5
Other interpretive ideas transposed into legal scholarship on
constitutional interpretation include theology,
6
postmodernism,
7
critical theory,
8
hermeneutics,
9
and corpus linguistics.
10
Another scholarly perspective on the creation and implications of extra-textual interpretations of
a text is the concept of “paratext” from the fields of media studies and fan studies.
11
Although the
concept might at first seem far removed from the doctrinal complexities and the political and
societal stakes of constitutional interpretation, the similarities are striking—and they suggest
several important conclusions about originalism and constitutional theory.
A. Media Paratext and the Interpretation of Media Texts
A groundbreaking treatment of the significance of media paratexts—describing and analyzing
how meanings of a media text can be inextricably interconnected with the interpretations created
by, derived from, or shared with its associated extra-textual material—is Professor Jonathan
4
See U.S. CONST. art. I, § 2, cl. 2; id. § 3, cl. 3; art. II, § 1, cl. 5; art. I, § 3, cl. 1; id. § 8, cl. 17; am. XXIII.
5
See Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747 (1999); but see Ernest A. Young & Adrian
Vermeule, Hercules, Herbert, and Amar: The Trouble With Intratextualism, 113 HARV. L. REV. 730 (2000). This
method of analysis appears, for example, in both the majority and dissenting opinions in the Supreme Court’s
decision interpreting the Second Amendment to invalidate a handgun ban, with the justices disagreeing over the
interpretive implications of references to the “militia” appearing both in Article I and in the Second Amendment.
See District of Columbia v. Heller, 554 U.S. 570, 579-82, 595-600 (2008); id. at 640-46, 651-62 (Stevens, J.,
dissenting).
6
See, e.g., H. JEFFERSON POWELL, THE MORAL TRADITION OF AMERICAN CONSTITUTIONALISM: A THEOLOGICAL
INTERPRETATION (1993).
7
See, e.g., STANLEY FISH, THE TROUBLE WITH PRINCIPLE (1999); STANLEY FISH, THERE’S NO SUCH THING AS FREE
SPEECH, AND IT’S A GOOD THING, TOO (1994).
8
See, e.g., MARK TUSHNET, RED, WHITE, AND BLUE: A CRITICAL ANALYSIS OF CONSTITUTIONAL LAW (1988);
Derrick A. Bell, Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518
(1980).
9
See, e.g., LEGAL HERMENEUTICS: HISTORY, THEORY, AND PRACTICE (Gregory Leyh ed. 1992).
10
See, e.g., Lawrence B. Solum, Triangulating Public Meaning: Corpus Linguistics, Immersion, and the
Constitutional Record, 2017 B.Y.U. L. REV. 1621; Evan C. Zoldan, Corpus Linguistics and the Dream of
Objectivity, 50 SETON HALL L. REV. 401 (2019).
11
Applying the prefix “para-” to the word “text” has been used to connote different meanings than the one used in
this article. Cf., e.g., Ronald K.L. Collins & Daniel M. Skover, Paratexts, 44 STAN. L. REV. 509 (1992) (“we imply a
meaning of ‘text’ that extends beyond (‘para’) its conventional understanding, which is typically limited to written
or printed documents … in the context we have adopted, ‘paratext’ means the electronic recording produced by
currently known video technology” and future equivalents).
Electronic copy available at: https://ssrn.com/abstract=3771460
Priester, Media Paratext and Constitutional Interpretation
4
Gray’s 2010 monograph Show Sold Separately: Promos, Spoilers, and Other Media Paratexts.
12
Gray illustrates his discussion with numerous examples of official and fan-generated paratexts
from a broad range of sources: movies such as Batman Begins, Fight Club, and the Lord of the
Rings trilogy; television shows including Lost, Heroes, Alias, and Twin Peaks; and, among other
licensed derivative works and consumer products, the longstanding influence of toys and
merchandise in the Star Wars franchise. Gray notes that although his chapters often discuss fans
and their interactions with media texts and franchises, his book is not a study of fan cultures as
such, but rather all forms of audiences, encompassing the general public, the casual audience,
non-fans, and anti-fans, as well as dedicated fans or regular viewers of media properties.
13
Media paratexts can take a wide variety of forms. In literary theory, paratext refers to material
within the book that is not part of its core text, such as the title page, dedication, or preface, as
well as to extrinsic sources such as advertisements, author interviews, or reviews; both types of
paratext can influence the interpretation or understanding of the book by the reader.
14
Applying
the concept to other media, Gray describes “entryway paratexts” that can shape interpretations
prior to encountering the text itself, such as promotion, reviews, and merchandise, as well as “in
media res paratexts” that affect interpretation and meaning during or after the experience of
interacting with the text, such as DVD bonus features, toys and videogames, and online audience
discussions about the text.
15
Entryway paratexts operate to direct our initial interpretations of a
text by setting expectations for what the text will be, while in media res paratexts can, among
other functions, seek to police the proper interpretations of the text intended by its creators.
16
Gray also emphasizes that paratexts may serve different functions, or hold different degrees of
significance, depending on the context in which they arise or appear. Some paratexts are more
prominent within fan interpretive communities, such as spoilers, speculation, and transformative
works.
17
Other paratexts are especially influential with the general audience—and sometimes, a
person’s only experience will be with the paratext, as in the case of a trailer or advertisement for
a movie the person never watches.
18
12
JONATHAN GRAY, SHOW SOLD SEPARATELY: PROMOS, SPOILERS, AND OTHER MEDIA PARATEXTS (2010).
13
See id. at 17. The body of academic scholarship in the field of fan studies is wide-ranging and extensive. See A
COMPANION TO MEDIA FANDOM AND FAN STUDIES (Paul Booth, ed., 2018); THE ROUTLEDGE COMPANION TO
MEDIA FANDOM (Melissa A. Click & Suzanne Scott, eds., 2018); see also, e.g., ANTI-FANDOM: DISLIKE AND HATE
IN THE DIGITAL AGE (Melissa A. Click, ed., 2019); FANDOM: IDENTITIES AND COMMUNITIES IN A MEDIATED WORLD
(Jonathan Gray et al., eds., 2d ed. 2017); KRISTINA BUSSE, FRAMING FAN FICTION: LITERARY AND SOCIAL
PRACTICES IN FAN FICTION COMMUNITIES (2017); THE FAN FICTION STUDIES READER (Karen Helleckson & Kristina
Busse, eds., 2014); MARK DUFFETT, UNDERSTANDING FANDOM: AN INTRODUCTION TO THE STUDY OF MEDIA FAN
CULTURE (2013).
14
See GRAY, supra note 12, at 25 (explaining literary paratexts described in GERARD GENETTE, PARATEXTS: THE
THRESHOLDS OF INTERPRETATION (Jane E. Lewin, trans., 1997)); see also Robert Spoo, Courtesy Paratexts:
Informal Publishing Norms and the Copyright Vacuum in Nineteenth-Century America, 69 STAN. L. REV. 637, 640-
50 (2017). Peter Beck applied Genette’s concept of “paratext” to the document of the U.S. Constitution itself,
identifying paratextual features such as the Preamble, signers’ signatures, official or unofficial section titles, and
ratification dates. See Peter Beck, The Parts We Skip: A Taxonomy of Constitutional Irrelevancy, 34 CONST.
COMMENT. 223, 244-51 (2019).
15
See GRAY, supra note 12, at 23, 35-39, 40-45.
16
See id. at 79.
17
See id. at 119-31, 135-41, 143-61, 173-74.
18
See id. at 24-26, 37-39, 79, 139, 166-73.
Electronic copy available at: https://ssrn.com/abstract=3771460
Priester, Media Paratext and Constitutional Interpretation
5
The importance of Gray’s analysis for purposes of this article, however, comes not from his
delineation and evaluation of various types of media paratexts, but rather from his insight that
paratext can supersede text both in establishing meaning and in its significance to the
interpreter.
19
For media texts, “there is never a point in time at which a text frees itself from the
contextualizing powers of paratextuality.”
20
Just as corporations rebrand themselves to try to
rekindle customer interest in their products and new works of historical scholarship can cause us
to think or feel differently about past events, so too paratext can change our interpretation or
understanding of a text, whether in the form of a thoughtful review by a film or television critic,
an academic article analyzing the text, or a licensed videogame that expands the personal
experience within the story world.
21
Paratexts can create meaning that becomes just as
authoritative to the fan community as the text itself.
22
On occasion, even, a later official text—a
sequel movie or a subsequent episode in a television series—fails to resonate with the fans
because it contradicts, or deviates too far from, the accepted meaning established by preceding
paratexts.
23
Ultimately, because paratexts hold “considerable power to amplify, reduce, erase, or add
meaning, much of the textuality that exists in the world is paratext-driven,” to the point that
“paratexts sometimes take over their texts.”
24
When that happens, in a functional sense it no
longer matters whether the initial source of the meaning was the text or the paratext—the
dispositive meaning has been settled regardless.
The long history of the Star Wars franchise and its fandom readily illustrates the prominence—
and interpretive dominance—of paratext.
25
Much of what we know and understand about Star
Wars cannot be found within the metaphorical four corners of the canonical text created by
George Lucas. The word “Ewok” is never spoken in Return of the Jedi, but fans have known that
name for the cute-but-deadly forest dwellers all along.
26
Fans in the Original Trilogy era shared
the lore that Darth Vader had been injured and burned in a lightsaber duel with Obi-Wan Kenobi
near lava, or perhaps a volcano, long before Lucas created the world of Mustafar for Revenge of
19
This issue is the prominent theme of Show Sold Separately; in the first chapter, Gray writes: “A continuing
question for this book, therefore, will be the degree to which paratexts overtake and subsume their texts, and the
conditions under which they do so.” Id. at 39.
20
Id. at 45.
21
Id. at 45.
22
See id. at 22, 37-38, 40-42, 46, 159-66.
23
See id, at 135-41, 144-46, 154-59.
24
Id. at 46, 45.
25
For scholarly discussion of the Star Wars franchise and fandom in the fields of fan studies and media studies, see,
e.g., DISNEY’S STAR WARS: FORCES OF PRODUCTION, PROMOTION, AND RECEPTION (William Proctor & Richard
McCulloch, eds., 2019); STAR WARS AND THE HISTORY OF TRANSMEDIA STORYTELLING (Sean Guynes & Dan
Hassler-Forest, eds., 2017); DAN GOLDING, STAR WARS AFTER LUCAS: A CRITICAL GUIDE TO THE FUTURE OF THE
GALAXY (2019); WILL BROOKER, USING THE FORCE: CREATIVITY, COMMUNITY, AND STAR WARS FANS (2002). For
other sources which emphasize the prominence of paratextual materials in the franchise’s history, see, e.g., KEN
NAPZOK, WHY WE LOVE STAR WARS (2019); CHRIS TAYLOR, HOW STAR WARS CONQUERED THE UNIVERSE: THE
PAST, PRESENT, AND FUTURE OF A MULTI-BILLION DOLLAR FRANCHISE (2014); A GALAXY NOT SO FAR AWAY
(Glenn Kenny, ed., 2002).
26
See Graeme McMillan, 30 Things You Didn’t Know About Return of the Jedi, WIRED (May 24, 2013),
https://www.wired.com/2013/05/return-of-the-jedi-anniversary/ (“6. The word ‘Ewok’ is never actually said in
Return of The Jedi, and neither were the names of individual Ewoks, although both appear in the end credits.”).
Electronic copy available at: https://ssrn.com/abstract=3771460
Priester, Media Paratext and Constitutional Interpretation
6
the Sith.
27
Boba Fett wore the armor of a Mandalorian supercommando thirty years before Lucas
put them onscreen in The Clone Wars.
28
Leia Organa and Han Solo were a married couple in
novels published for more than a quarter century prior to the release of The Force Awakens.
29
Over four decades, the Star Wars franchise has included deep and multi-faceted layers of
meaning that did not arise from within the foundational text itself.
B. Originalism, Paratext, and the Interpretation of the Constitutional Text
The decisions of the U.S. Supreme Court interpreting the highly general and facially
indeterminate textual provisions of the Constitution, frequently developing extensive bodies of
case law in the process, can be analogized to the concept of media paratext: the Court’s decisions
are not themselves the textual material of the Constitution, but they shape our understanding of
what the Constitution’s text means. The U.S. Constitution contains fewer than 8,000 words. As
of the conclusion of the October 2019 Term in July 2020, the U.S. Supreme Court’s decisions
are printed and reported in 591 volumes of the United States Reports—and all but the shortest of
those published decisions each individually exceeds that word count. The amount of words the
Court has devoted to interpreting the Constitution is literally orders of magnitude greater than the
sparse underlying text.
As a descriptive matter, both the text of the Constitution and the Court’s precedent are
constitutional law in the practical sense that, most of the time, it is the case law which is cited
and debated by lawyers as the applicable legal authority on whether a particular government
action is constitutional or unconstitutional.
30
As a normative matter, the nature and scope of
Court’s authority to define the meaning of constitutional law is more complicated; a detailed
examination of the pertinent constitutional theory is beyond the scope of this article, and
originalism is one prominent theory among many.
31
27
The novelization of Return of the Jedi, for example, includes spectral Obi-Wan Kenobi telling Luke Skywalker
that “your father fell into a molten pit” during their fateful duel. Donald Glut, Return of the Jedi, at 80, reprinted in
THE STAR WARS TRILOGY: THE 25TH ANNIVERSARY COLLECTOR’S EDITION (2002).
28
See, e.g., Tom Bissell, Pale Starship, Pale Rider: The Ambiguous Appeal of Boba Fett, in GALAXY NOT SO FAR,
supra note 25, at 10 (“His armor—dented, sandblasted, scarred by unimaginable travails—is Mandalorian … though
his connection to that mighty people remains unclear.”).
29
Leia and Han were already married in Heir to the Empire, Timothy Zahn’s 1991 novel kicking off the Expanded
Universe paratextual storytelling era; the events leading to their nuptials were subsequently portrayed in The
Courtship of Princess Leia, a 1994 novel by Dave Wolverton. Novels featuring Leia and Han as a married couple
continued until 2013’s Crucible by Troy Denning, which took place 37 years later on the in-universe timeline.
30
Though he does not use the label “paratext,” Professor Tribe has discussed a similar distinction. See LAURENCE
TRIBE, THE INVISIBLE CONSTITUTION 1-21 (2008). The U.S. Supreme Court also sometimes frames the relationship
between its precedent and the Constitution in a similar manner. See, e.g., Miami Herald Pub. Co. v. Tornillo, 418
U.S. 241, 254 (1974) (“the express provisions of the First Amendment and the judicial gloss on that Amendment
developed over the years.”).
31
For example, some prominent non-originalist scholars advance arguments that Supreme Court decisions can and
do attain authoritative status in defining the Constitution’s meaning which is comparable to an Article V
amendment. See BRUCE ACKERMAN, WE THE PEOPLE, VOLUME 1: FOUNDATIONS (1991) (describing a theory of
“constitutional moments” during which the people, through the actions of the political branches as well as the
confirming decisions of the Supreme Court, can alter the meaning of the Constitution without Article V
amendments, such as the New Deal and the Civil Rights Movement in addition to the Founding era and
Reconstruction); BRUCE ACKERMAN, WE THE PEOPLE, VOLUME 2: TRANSFORMATIONS (1998) (same); BRUCE
ACKERMAN, WE THE PEOPLE, VOLUME 3: THE CIVIL RIGHTS REVOLUTION (2014) (same); DAVID A. STRAUSS, THE
LIVING CONSTITUTION (2010) (defending a descriptive and normative theory of constitutional interpretation by the
Electronic copy available at: https://ssrn.com/abstract=3771460
Priester, Media Paratext and Constitutional Interpretation
7
The principal analytical objective of originalism as a constitutional theory is to circumscribe the
boundaries of constitutional paratext by privileging one particular form of extra-textual
information about the Constitution and denying the interpretive legitimacy of any other extra-
textual or paratextual considerations.
32
Originalism acknowledges, as it must, that the text alone
cannot answer most disputed questions about the Constitution’s meaning. Originalists
nonetheless maintain that the only legitimate source for supplementing the text is historical
information about the “original meaning” of the applicable constitutional provision. Over the
past several decades, originalists have defined and refined, and sometimes disagreed about, the
parameters of this concept of constitutional original meaning.
33
Analytical variations include the
original intention of the drafters,
34
the original understanding of the ratifiers,
35
the original
“public meaning” of the text at the time of ratification,
36
the original expected application of the
provision at the time of its ratification,
37
and the original understanding of the constitutional
principle (but not necessarily particular applications) contained in the text being ratified.
38
Regardless of the differences among the various versions, though, originalism denies that
constitutional interpretation appropriately may take account of extra-textual factors such as
personal or political or moral values, pragmatic considerations, or changed values in
contemporary American society compared to the time of ratification. Importantly, even the status
of existing Supreme Court precedent as valid constitutional paratext is called into serious
question by most versions of an originalist approach.
39
Supreme Court as a form of common law decision-making). On the other hand, originalists would reject such
conclusions: they view the original meaning of the Constitution’s text as the controlling authority.
32
Professor Eric Segall, for example, provides this definition of originalism: “an originalist judge or scholar is
someone who believes the following three propositions: (1) the meaning of the constitutional text is fixed at the time
of ratification; (2) judges should give that meaning the primary role in constitutional interpretation; and (3)
pragmatic modern concerns and consequences are not allowed to trump discoverable original meaning (although
adhering to precedent might).” ERIC J. SEGALL, ORIGINALISM AS FAITH 8-9 (2018).
33
See, e.g., SEGALL, supra note 32, at 56-121; Eric Berger, Originalism’s Pretenses, 16 U. PA. J. CONST. L. 329,
332-40 (2013).
34
See, e.g., Jack M. Balkin, Original Meaning and Constitutional Redemption, 24 CONST. COMMENT. 427, 444
(2007) (“In the early 1980s conservative lawyers like Attorney General Edwin Meese argued for a return to a
jurisprudence of ‘original intention.’”).
35
See, e.g., Balkin, supra note 34, at 445 (“‘Original understanding’ better captured a focus on the authorizing
audience for the text as opposed to the text’s drafters.”); Berger, supra note 33, at 333 (“[G]enerally speaking,
original-intentions originalism focuses on the intentions of the Constitution’s Framers … Original-understanding
originalism, by contrast, … looks to the understandings of the Constitution’s ratifiers.”) (citing Lawrence B. Solum,
We Are All Originalists Now, in CONSTITUTIONAL ORIGINALISM: A DEBATE 12, 19 (Robert W. Bennett & Lawrence
B. Solum eds., 2011)).
36
See, e.g., Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 NW. U. L. REV. 923, 933
(2009) (“the original meaning of the Constitution is the original public meaning of the constitutional text”).
37
See, e.g., Jack M. Balkin, Abortion and Original Meaning, 24 CONST. COMMENT. 291, 296 (2007) (“Original
expected application asks how people living at the time the text was adopted would have expected it would be
applied using language in its ordinary sense (along with any legal terms of art).”).
38
See, e.g., Steven G. Calabresi, Julia T. Rickert, Originalism and Sex Discrimination, 90 TEX. L. REV. 1, 11 (2011)
(“We conclude that the original public meaning of the Fourteenth Amendment is that it bans all systems of caste and
of class-based lawmaking … Once women were given equal political rights by the Nineteenth Amendment, a
reading of the general ban on caste systems in the Fourteenth Amendment that did not encompass sex discrimination
became implausible.”).
39
Originalist scholars generally urge reduced weight for stare decisis when the Court’s existing precedent conflicts
with the originalist’s conclusion about the original meaning. See, e.g., Amy Coney Barrett, Originalism and Stare
Decisis, 92 NOTRE DAME L. REV. 1921 (2017); Randy J. Kozel, Stare Decisis in the Second-Best World, 103 CAL. L.
Electronic copy available at: https://ssrn.com/abstract=3771460
Priester, Media Paratext and Constitutional Interpretation
8
My purpose in making the case for a descriptive analogy between Star Wars paratext and
Supreme Court case law is to demonstrate how originalism’s attempt to police the boundaries of
legitimate paratextual interpretation is doomed to fail both practically and conceptually. In doing
so, the analogy supports my normative conclusion about the futility of originalist constitutional
interpretation.
III. Text and Paratext in the Contested Meaning of the Canon
One of the core premises of originalist interpretation is that the meaning of the Constitution is
fixed and unchanging.
40
If we want to change what the Constitution means or requires, they
argue, then we must amend the text using the procedures provided in Article V. Likewise,
originalists maintain, altering the legally enforceable meaning of the text through paratextual
interpretation constitutes an illegitimate usurpation of judicial power.
The analogy to media paratext demonstrates the fundamental flaw with this claim. Put simply,
that’s not how textual interpretation works. Canonical meanings of a text can, do, and always
will change under the interpretive influence of paratext.
A. Paratext and its Relationship to Understanding the Canon
Like U.S. constitutional law, the Star Wars franchise always has consisted of a far larger amount
of paratext compared to the quantity of canonical text. The existence of Star Wars paratext in
fact precedes the release of the first movie on May 25, 1977: media coverage about the
upcoming film, promotion at San Diego Comic-Con in the summer of 1976, and the publication
of the novelization of the movie (attributed to George Lucas but ghost-written by Alan Dean
Foster) in December 1976 by prominent science fiction imprint Del Rey.
41
Upon the movie’s
incredible box office and critical success, media coverage expanded considerably too. Fans
learned new information about Star Wars from interviews with Lucas and the cast and crew,
ongoing promotional materials, toy packaging and tie-in merchandise, and other sources.
42
Paratextual storytelling continued, as well, including an eponymous looseleaf comic series from
REV. 1139, 1147-50 (2015); John O. McGinnis & Michael B. Rappaport, Reconciling Originalism and Precedent,
103 NW. U. L. REV. 803 (2009). Among self-described originalist justices on the Court, however, the willingness to
overrule longstanding precedent tends to be somewhat less bold. See, e.g., SEGALL, supra note 32, at 122-40, 156-
170; see also Ramos v. Louisiana, 140 S. Ct. 1390, 1405 (2020) (opinion of the Court by Gorsuch, J.) (applying
stare decisis factors the Court has “traditionally considered” in deciding whether to overrule a precedent); id. at
1414 (Kavanaugh, J., concurring) (describing “special justification or strong grounds” required to overrule a
constitutional law precedent); id. at 1421-22 (Thomas, J., concurring in the judgment) (urging standard, based on
prior opinions, of overruling precedent when it is “demonstrably erroneous”).
40
See, e.g., Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 NOTRE
DAME L. REV. 1 (2015); Frederick Mark Gedicks, The "Fixation Thesis" and Other Falsehoods, 72 FLA. L. REV.
219 (2020). Some self-described originalists assert that this premise is consistent with Supreme Court decisions
enshrining contemporary, not historical, values by relying upon the argument that it is the facts, not the law, which
has changed. See, e.g., SEGALL, supra note 32, at 104-115 (evaluating “inclusive originalism”); William Baude, Is
Originalism Our Law?, 115 COLUM. L. REV. 2349, 2356 (2015) (“a word can have a fixed abstract meaning even if
specific facts that meaning points to change over time”) (quoted in SEGALL, supra note 32, at 105).
41
See, e.g., Scott Feinberg, He Was Star Wars’ Secret Weapon, So Why Was He Forgotten?, THE HOLLYWOOD
REPORTER, Feb. 6, 2020, https://www.hollywoodreporter.com/features/he-was-star-wars-secret-weapon-why-was-
he-forgotten-1275211 (“Ashley Boone Jr., the first black president of a major Hollywood studio, helped make
George Lucas’ quirky space opera a hit in the 1970’s—yet chances are you’ve never heard of him”).
42
For example, Kenner sold 26 million Star Wars action figures in 1978 alone. See Lincoln Geraghty, Star Wars
Merchandising and Toys as Paratexts, Deletion (Nov. 24, 2016), https://www.deletionscifi.org/episodes/episode-
12/star-wars-merchandising-and-toys-as-paratexts/.
Electronic copy available at: https://ssrn.com/abstract=3771460
Priester, Media Paratext and Constitutional Interpretation
9
Marvel Comics, a separate serialized comic strip in newspapers, and the Del Rey novels Splinter
of the Mind’s Eye by Foster in 1978 and Han Solo at Star’s End and Han Solo’s Revenge by
Brian Daley in 1979. And that was the paratext arriving even before The Empire Strikes Back.
43
The canonical text of the Original Trilogy films concluded in 1983, but the production of Star
Wars paratext hardly wavered. The newspaper strip wound down in 1984, the renowned line of
Kenner action figures continued producing new toys into 1985, and Marvel Comics published
Star Wars stories until the summer of 1987. Later that year, the primary generation of paratext
passed to a new licensee: West End Games, which launched Star Wars: The Roleplaying Game.
Within three years, WEG had published nearly thirty books to support the game—and, with
Lucasfilm’s blessing and support, the WEG products for the first time provided official names
and backstory lore for many of the countless aliens, vehicles, weapons, and technology seen in
the Star Wars films.
44
In 1991, Star Wars returned to the creation of paratextual storytelling with
the publication of Timothy Zahn’s #1 New York Times bestselling novel Heir to the Empire from
Bantam and the start of the comic series Dark Empire from Dark Horse Comics—each of which
told a story taking place a number of years after Return of the Jedi and starring Luke Skywalker
as a Jedi Knight, Princess Leia and Han Solo as a married couple with children, and other
familiar characters. By the time The Phantom Menace released in 1999, WEG had produced well
over one hundred game manuals while Bantam and Dark Horse had published dozens of Star
Wars stories ranging far afield from Lucas’ first three movies.
Lucas’ return to the movie screen to add new canonical text to the Star Wars franchise, however,
did not inhibit the production of paratext—far from it. Some of this new paratext paralleled the
original: anticipation for and excitement about the Prequel Trilogy generated interviews and
related media coverage, trailers and television commercials, official behind the scenes
revelations as well as unofficial leaks and spoilers, new Star Wars action figures and other toys,
and a huge variety of licensed tie-in products.
45
Paratextual storytelling never slowed down,
either. The roleplaying game license passed to Hasbro subsidiary Wizards of the Coast, which
also published Dungeons & Dragons roleplaying game, while LucasArts released multiple top-
selling and highly regarded videogames. The adult fiction license returned to Del Rey, which
published novels related to the Prequel Trilogy films as well as its own flagship storyline, the
New Jedi Order, featuring the Original Trilogy leads and a new generation of teenaged heroes in
an epic galactic conflict set roughly a quarter-century after the Battle of Endor. Similarly, Dark
Horse published comics elaborating backstory and side adventures for characters introduced in
the Prequel Trilogy, while also releasing new stories for the Original Trilogy characters and new
characters created for the comics. During the three-year period between Attack of the Clones and
Revenge of the Sith, Del Rey, Dark Horse, and other licensees collaborated with Lucasfilm to
release—roughly in “real time”—stories set during the Clone Wars being waged “offscreen”
between the two films. From 1999 to 2005, the three movies released by George Lucas, though
43
Del Rey published novelizations of The Empire Strikes Back (April 1980) and Return of the Jedi (May 1983), as
well as four more novels by Daley, one more in 1980 featuring Han Solo and three in 1983 starring Lando
Calrissian.
44
See, e.g., Tim Veekhoven, West End Games: Expanding that Galaxy Far, Far Away…, StarWars.com (Oct. 30,
2015), https://www.starwars.com/news/west-end-games-expanding-that-galaxy-far-far-away.
45
See, e.g., Jeff Jensen & Daniel Fierman, The “Star Wars” Marketing Invasion, Entertainment Weekly (Mar. 5,
1999), https://ew.com/article/1999/03/05/star-wars-marketing-invasion/.
Electronic copy available at: https://ssrn.com/abstract=3771460
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10
presumably the most “important” and “canonical” in their influence, comprised only a small
fraction of the overall output of the Star Wars franchise in those years.
The following decade maintained the ongoing production of Star Wars canon and paratext.
Though its pace slowed from the heyday of movie years, the market continued to support the sale
of Hasbro action figures, LEGO building sets, children’s merchandise and high-end collectibles
for adults, videogames, and the roleplaying game. Lucas created and released The Clone Wars
animated series, revisiting the galactic conflict between Episodes II and III on the Star Wars
timeline. Del Rey followed the New Jedi Order series with more than twenty additional books
featuring the same characters and continuing their stories into years further removed from the
Original Trilogy. Dark Horse Comics released stories set in the far past, Prequel Trilogy era, the
intertrilogy Dark Times period, Original Trilogy era, and several different points in the post-
Original Trilogy timeframe. When this era of Star Wars paratext—often called the Expanded
Universe in both fandom and the official nomenclature of the time
46
—drew to a close in 2014,
many millions of people, not only hardcore Star Wars fans, had become familiar with a wide
variety of ideas, themes, characters, in-universe lore, and terminology about the Star Wars
franchise that came from the paratext.
In the same way, the vast majority of what we think of as constitutional law comes from the
paratext—usually, but not always, the U.S. Supreme Court’s decisions interpreting the meaning
of constitutional provisions
47
—rather than from the text itself. Many Americans have consumed
enough pop culture entertainment to be able to recite the Miranda warnings from memory,
perhaps without realizing they appear nowhere in the Constitution but instead their familiar
formulation is taken almost verbatim from the Court’s opinion.
48
The phrase “clear and present
danger” similarly comes from the Court’s opinions, though over fifty years have passed since the
Court abrogated it as the doctrinal standard for free speech cases relating to advocacy of criminal
activity.
49
Some terminology from the Constitution’s text also is commonly recognizable, such as
the prohibition of “cruel and unusual punishments” in the Eighth Amendment, but the Court’s
paratext has generated a large, complex, and sometimes inconsistently applied body of case law
addressing such issues as which modes of punishment are per se prohibited, when an otherwise
lawfully available punishment becomes sufficiently disproportional on the facts of the particular
case as to be unconstitutional, and the limitations and restrictions governing the imposition of
capital punishment.
50
46
See, e.g., CAROLYN COCCA, SUPERWOMEN, GENDER, POWER, AND REPRESENTATION 87 (2016); TRANSMEDIA
STORYTELLING, supra note 25, at 9.
47
Importantly, case law has less significance when the constitutional question is not being resolved in the context of
litigation. Constitutional interpretation outside of the Supreme Court, including by Executive Branch officials as
well as in relation to disputes between the Executive and Congress which are not amenable to judicial resolution,
nevertheless involves similar methodologies of constitutional interpretation and significant interpretive weight
accorded to the outcomes and rationales of previous interpretive controversies. See, e.g., H. JEFFERSON POWELL,
TARGETING AMERICANS: THE CONSTITUTIONALITY OF THE U.S. DRONE WAR (2016); H. JEFFERSON POWELL, THE
PRESIDENT’S AUTHORITY OVER FOREIGN AFFAIRS: AN ESSAY IN CONSTITUTIONAL INTERPRETATION (2002); H.
JEFFERSON POWELL, THE CONSTITUTION AND THE ATTORNEYS GENERAL (1999).
48
See Miranda v. Arizona, 384 U.S. 436, 444-45, 468-479 (1966).
49
See, e.g., Schenck v. United States, 249 U.S. 47 (1919); see also Brandenburg v. Ohio, 395 U.S. 444 (1969).
50
“The scope of the Cruel and Unusual Punishments Clause extends not only to barbarous methods of punishment,
but also to punishments that are grossly disproportionate.” Rummel v. Estelle, 445 U.S. 263, 288 (1980). On modes
of punishment, see, e.g., Glossip v. Gross, 135 S. Ct. 2726 (2015); Hope v. Pelzer, 536 U.S. 730 (2002); Hudson v.
McMillian, 503 U.S. 1 (1992); Rummel, 445 U.S. at 287-88. For sharply divided decisions applying proportionality
Electronic copy available at: https://ssrn.com/abstract=3771460
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11
And once we move beyond the range of constitutional terminology and concepts that have
reached general public attention, the breadth and depth of the Supreme Court’s paratext rivals the
immense Expanded Universe of Star Wars. At many law schools today, the introductory courses
in constitutional law span two semesters and six credit hours. Law schools may offer an entire
course on First Amendment law, or even separate courses on freedom of speech and press and
freedom of religion, among a wide variety of elective offerings relating in whole or in part to
constitutional law doctrines.
51
On the other hand, it is also paratext which leads law school
constitutional law to quickly dispense with study of the Privileges or Immunities Clause of the
Fourteenth Amendment: the Supreme Court effectively deprived it of meaningful substantive
content in the notorious Slaughterhouse Cases five years after ratification, has applied it to
invalidate government action only once in the modern era, and recently declined the invitation to
overrule Slaughterhouse when the question was briefed and argued.
52
Though a significant
number of Supreme Court cases address the high degree of privacy accorded to the home under
the Fourth Amendment, the lack of similar case law paratext leaves the adjacent Third
Amendment generally ignored, if not unmentioned, in the law school curriculum and by the
Court, despite the fact that the Third Amendment’s text overtly protects the home from (one
explicitly enumerated form of) unwanted and invasive government intrusion.
53
From a practical
standpoint, it is the paratext, not the text, which defines the meaning of U.S. constitutional law in
law schools, in the legal profession, and in the Supreme Court.
doctrine, see, e.g., Ewing v. California, 538 U.S. 11 (2003); Harmelin v. Michigan, 501 U.S. 957 (1991); Rummel,
445 U.S. 263. For recent controversial and sharply divided decisions involving capital punishment, which cite and
discuss earlier case law, see, e.g., Glossip, 135 S. Ct. 2726; Kennedy v. Louisiana, 554 U.S. 407 (2008); Roper v.
Simmons, 543 U.S. 551 (2005); Atkins v. Virginia, 536 U.S. 304 (2002).
51
Courses in administrative law, election law, and civil rights law, for example, typically involve substantial study
of statutory law as well as the relevant constitutional principles. Other courses such as intellectual property law,
federal criminal law or white collar criminal law, and environmental law typically would include some discussion of
governing constitutional law doctrines but primarily would emphasize the statutory provisions that for the most part
encompass the field. Some required courses include units involving constitutional law, such as the Confrontation
Clause in Evidence or the Takings Clause when covered in Property.
52
See Slaughter-House Cases, 83 U.S. 36 (1873); Saenz v. Roe, 526 U.S. 489 (1999), McDonald v. Chicago, 561
U.S. 742 (2010). Justice Thomas was the only member of the Court who wrote, in an extensive concurring opinion,
to express interest in revisiting the Court’s longstanding interpretation of the Privileges or Immunities Clause. See
McDonald, 561 U.S. at 805-06, 811-13 (Thomas, J., concurring in part and concurring in the judgment); see also
Ramos v. Louisiana, 140 S. Ct. 1390, 1424 (2020) (Thomas, J., concurring in part) (“I decline to apply the legal
fiction of due process incorporation. … I would accept petitioner’s invitation to decide this case under the Privileges
or Immunities Clause.”) (internal quotations omitted); see also id. (quoting Timbs v. Indiana, 139 S. Ct. 682, 691
(2019) (Gorsuch, J., concurring) (“nothing in this case turns on that question,” i.e., whether incorporating the Bill of
Rights to restrict state governments under Section One of the Fourteenth Amendment ought to be doctrinally
grounded in the Privileges or Immunities Clause rather than the Due Process Clause)).
53
For cases emphasizing the Fourth Amendment’s special degree of protection of homes, see, e.g., Florida v.
Jardines, 569 U.S. 1 (2013); Kyllo v. United States, 533 U.S. 27 (2001). By contrast, as of this writing, the Third
Amendment is cited substantively on the merits (i.e., in support of reasoning about the scope of constitutionally
protected privacy) within the body of the text of only one majority opinion of the Court, which itself drew on a
previous dissenting opinion for the analytical point, see Griswold v. Connecticut, 381 U.S. 479, 484 (1965); Poe v.
Ullman, 367 U.S. 497, 549 (1961) (Harlan, J., dissenting), as well as tangentially within two familiar opinions which
are well known for other reasons, see Katz v. United States, 389 U.S. 347, 351 n.5 (1967); Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 644 (1952) (Jackson, J., concurring); see also Laird v. Tatum, 408 U.S. 1, 15
(1972) (holding that plaintiffs’ challenge to Army domestic surveillance program must be dismissed due to failure to
demonstrate Article III standing).
Electronic copy available at: https://ssrn.com/abstract=3771460
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12
B. Disavowed Paratext and “Incorrectly” Interpreting the Canon
A longstanding problem in constitutional theory, including originalism, concerns how to account
for those infamous decisions of the Supreme Court which are, in hindsight, deemed not merely to
be wrongly decided and rightfully overruled, but also to be so egregiously harmful to the Court’s
institutional legitimacy that any credible theory of constitutional interpretation must be able to
explain how it disavows them. The decision in Dred Scott v. Sandford (1857), for example, is
universally condemned—and probably overdetermined in the reasons for its designation as one
of the worst decisions in the Court’s history.
54
The ruling in Plessy v. Ferguson (1896), deeming
separate-but-equal facilities to comply with the Equal Protection Clause of the Fourteenth
Amendment, would be included on the list.
55
So too Korematsu v. United States (1944),
upholding the internment of Japanese Americans on the West Coast during World War II over
dissents expressly condemning the majority for complicity in racism.
56
A century ago in a series
of 1919 cases including Abrams v. United States, the Court rejected First Amendment challenges
and upheld the criminal convictions of political dissenters speaking out against conscription in
World War I and the detrimental impacts on workers of unregulated capitalism.
57
Although less
stark in its stakes—whether a labor law regulating working conditions for bakers constituted an
unconstitutional interference with freedom of contract or economic liberty—Lochner v. New
York (1905) is frequently discussed as another wrong or misguided decision which contemporary
constitutional theories and Supreme Court decisions are obligated to avoid repeating.
58
Among
the justices on the Court and beyond, some would include Roe v. Wade (1973), recognizing a
constitutional right to terminate a pregnancy prior to fetal viability,
59
or Bowers v. Hardwick
(1986), refusing to recognize constitutional protection against criminal prosecution for acts of
same-sex sodomy,
60
on the list of similarly wrong decisions.
This remains a recurring problem in constitutional theory because it is not easy to identify, much
less reach a consensus about, the specific conceptual reasons that explain why the Court’s
54
Dred Scott v. Sandford, 60 U.S. 393 (1857); see, e.g., Jack M. Balkin & Sanford Levinson, Thirteen Ways of
Looking at Dred Scott, 82 CHI.-KENT L. REV. 49 (2007); MARK A. GRABER, DRED SCOTT AND THE PROBLEM OF
CONSTITUTIONAL EVIL (2006); SEGALL, supra note 32, at 25-29.
55
Plessy v. Ferguson, 163 U.S. 537 (1896).
56
Korematsu v. United States, 323 U.S. 214 (1944); id. at 206 (Murphy, J., dissenting) (“I dissent, therefore, from
this legalization of racism.”); id. at 246 (Jackson, J., dissenting) (arguing that Court’s opinion will have “validated
the principle of racial discrimination in criminal procedure”); see also Trump v. Hawaii, 138 S. Ct. 2392, 2423
(2019) (“The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is
already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history,
and—to be clear—‘has no place in law under the Constitution.’”) (quoting 323 U.S. at 248 (Jackson, J., dissenting));
id. at 2447-48 (Sotomayor, J., dissenting) (“Today’s holding is all the more troubling given the stark parallels
between the reasoning of this case and that of Korematsu … This formal repudiation of a shameful precedent is
laudable and long overdue. But it does not make the majority’s decision here acceptable or right.”).
57
See Schenck v. United States, 249 U.S. 47 (1919) (leaflets denouncing conscription of soldiers for U.S.
involvement in World War I); Frohwerk v. United States, 249 U.S. 204 (1919) (antiwar editorials and articles in
newspaper); Debs v. United States, 249 U.S. 211 (1919) (antiwar campaign speech by Socialist Party candidate for
President of the United States in 1920 election); Abrams v. United States, 250 U.S. 616 (1919) (antiwar socialist
circulars).
58
Lochner v. New York, 198 U.S. 45 (1905); see, e.g., Keith E. Whittington, The New Originalism, 2 GEO. J.L. &
PUB. POL’Y 599, 601-02 (2004).
59
Roe v. Wade, 410 U.S. 113 (1973); see also, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 944 (1992)
(Rehnquist, C.J., dissenting, joined by White, Scalia, and Thomas, JJ.) (“We believe that Roe was wrongly decided,
and that it can and should be overruled”); id. at 995 (Scalia, J., dissenting) (“The Court’s description of the place of
Roe in the social history of the United States is unrecognizable.”).
Electronic copy available at: https://ssrn.com/abstract=3771460
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constitutional reasoning in these cases was flawed, or how a particular proposed theory of
constitutional interpretation would ensure many more “right” outcomes and many fewer “wrong”
ones.
61
Different cases may be flawed for different reasons, and solving one flaw may not solve
others—or may create new flaws. Perhaps the flaw in Dred Scott, Lochner, and Roe was that the
Court engaged in inappropriate “judicial activism” by invalidating laws duly enacted by the
political branches—but arguably the flaw with Plessy, Abrams, and Korematsu was Court’s
passivity in failing to vindicate the individual rights of disparaged minorities against
infringement by the political majority.
62
Despite valiant efforts by its defenders to proffer
explanations, originalism as a method of constitutional interpretation does not get all the iconic
“wrong” cases right, either.
63
By comparison, the instances of disavowed paratext in the Star Wars franchise are considerably
less well known, and many casual fans may not even have heard of them. One such example is
the Star Wars Holiday Special: though it may be an obscure reference to the general public,
among the fandom it is an infamous event in the history of the franchise.
64
Broadcast during a
two-hour block (including commercial breaks) on CBS on Friday, November 17, 1978, the
variety show format featured the cast of A New Hope as well as in-Star-Wars-character
appearances by luminaries such as Bea Arthur, Harvey Korman, Art Carney, Diahann Carroll,
and (yes, really) the band Jefferson Starship. Despite what might seem to have been stellar
potential, the Holiday Special’s combination of silliness, irreverence, and the surreal, along with
its generally poor execution, was so badly received that it disappeared into the Lucasfilm vault as
though it had never existed. Interestingly, the Holiday Special included the first appearances by
members of Chewbacca’s family, who later appeared in other official materials, as well as the
bounty hunter Boba Fett, nemesis to Han Solo in The Empire Strikes Back and Return of the
Jedi, during an animated segment. Other lore introduced in the special also has been validated by
subsequent usage in canon text or subsequent paratext.
65
Yet Lucasfilm to this day treats the
Holiday Special itself as a non-entity, except for the occasional self-deprecating reference to its
poor quality and deliberately archived status.
66
60
Bowers v. Hardwick, 487 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003).
61
See, e.g., J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 963 (1998);
Thomas B. Colby & Peter J. Smith, The Return of Lochner, 100 CORNELL L. REV. 527, 590-600 (2015); Jamal
Greene, The Anticanon, 125 HARV. L. REV. 379 (2011); Richard A. Primus, Canon, Anti-Canon, and Judicial
Dissent, 48 DUKE L.J. 243 (1998).
62
Cf. Greene, supra note 61, at 383 (“anticanonical cases are not distinguished by unusually poor reasoning, by
special moral failings, or because these problems exist in tandem”).
63
See, e.g., Andrew B. Coan, Talking Originalism, 2009 B.Y.U. L. REV. 847, 865 (2009) (“Would we like an
originalist Constitution better than the Constitution we could expect to end up with under any of the nonoriginalist
approaches []?”); Michael S. Lewis, Evil History: Protecting Our Constitution Through an Anti-Originalism Canon
of Constitutional Interpretation, 18 U.N.H.L. REV. 261 (2020).
64
See, e.g., Webster Younce, It’s a Wonderful Life Day, or How I Learned to Stop Worrying and Love the Star Wars
Holiday Special, in GALAXY NOT SO FAR, supra note 25, at 140; Jessica Roy, ‘The Star Wars Holiday Special’
aired only once. 40 years later, it’s still weird, L.A. TIMES, Nov. 17, 2018,
https://www.latimes.com/entertainment/herocomplex/la-et-hc-star-wars-holiday-special-20181117-story.html.
65
See, e.g., Chris Edwards, The Mandalorian has Easter Egg from Infamous Star Wars Holiday Special, Digital Spy
(Nov. 13, 2019), https://www.digitalspy.com/tv/ustv/a29780765/the-mandalorian-easter-eggs-star-wars-holiday-
special/
66
In December 2020, Lucasfilm released The LEGO Star Wars Holiday Special, animated in the style of LEGO
building sets, on the Disney+ streaming service, with brief acknowledgement of the original. See Dan Brooks, Inside
the Heart of the LEGO Star Wars Holiday Special, StarWars.com (Oct. 15, 2020),
Electronic copy available at: https://ssrn.com/abstract=3771460
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Other examples of disavowed Star Wars paratext likewise are generally familiar only to those
fairly well versed in Star Wars paratext in the first place. When the Expanded Universe began to
grow rapidly in the mid-1990s, for example, the stories in the earlier Marvel comics series were
generally ignored. Some of this no doubt was due to the comics being long out of print, while the
concurrent Expanded Universe material was more readily accessible for the creators of novels,
comics, videogames, and roleplaying games to synergize and interconnect their content with
each other. But, like the Holiday Special (though usually far less extreme), the Marvel comics
also likely contained a bit too much late-1970s weirdness and camp for the creative tastes of a
more serious, more science-fiction flavored franchise two decades later.
67
Similarly, although
Zahn’s seminal novels and Dark Horse’s Dark Empire comics each were developed with some
tangential input from George Lucas before kicking off the Expanded Universe storytelling, the
post-Return of the Jedi paratext generated by the novels quickly dominated the field. Although
Dark Empire was never unceremoniously thrown in a vault or allowed to vanish into obscurity
out of print, its key events, plot points, and characterization beats effectively dropped out of the
paratext, rarely referenced or even alluded to by subsequent stories, especially compared to the
large influence held by Zahn’s Thrawn Trilogy.
68
Ironically, several of the most controversial
elements of Dark Empire, which contributed to its back-benching during the Expanded Universe
era—including a Luke Skywalker who brushes close to the dark side and the return of the not-
actually-deceased Emperor Palpatine by means of a clone body—later reappeared in the Sequel
Trilogy films.
69
Across the two decades of the Star Wars Expanded Universe, other instances can
be found, as well.
The existence of these examples of disavowed Star Wars paratext serves to illustrate the point
that a superstructure of paratext built around an underlying canon is unlikely ever to find perfect
alignment with the text—or with the consensus interpretations and expectations created by the
rest of the paratext. Just as certain officially licensed Star Wars paratext became ignored because
ultimately it just didn’t feel right as part of Star Wars, so too the Supreme Court’s infamous
“wrong” decisions stand out because they fail to align with normative judgments about what the
Constitution—or what the United States of America—does or ought to stand for.
https://www.starwars.com/news/inside-the-heart-of-the-lego-star-wars-holiday-special (quoting James Waugh,
Lucasfilm vice president of Franchise Content & Strategy: “‘It was completely anathema to talk about doing a
holiday special within the halls of Lucasfilm for years. But the truth is, it’s part of our tapestry. It’s part of our story.
And fans have embraced it in a kind of ironic, fun way. … It’s more honoring the elements of that holiday special
that have lingered with the franchise.’”).
67
See STAR WARS ON TRIAL: SCIENCE FICTION AND FANTASY WRITERS DEBATE THE MOST POPULAR SCIENCE
FICTION FILMS OF ALL TIME 135-49 (Matthew Stover & David Brin, eds., 2006) (debating whether “Star Wars
novels are poor substitutes for real science fiction and are driving real science fiction off the shelves”); id. at 217-
232 (debating whether “Star Wars has dumbed down the perception of science fiction in the popular imagination”).
68
See, e.g., Ryan Britt, What Star Wars: Dark Empire Tells Us About The Rise of Skywalker, Den of Geek (May 4,
2019), https://www.denofgeek.com/books/dark-empire-the-rise-of-skywalker/.
69
See, e.g., Jamie Lovett, Star Wars: The Rise of Skywalker’s Biggest Ideas Happened First in a ’90s Star Wars
Comic, Comicbook.com (Dec. 23, 2019), https://comicbook.com/starwars/news/star-wars-the-rise-of-skywalker-
dark-empire/.
Electronic copy available at: https://ssrn.com/abstract=3771460
Priester, Media Paratext and Constitutional Interpretation
15
IV. The Impossibility of Erasing Paratext
Another dilemma shared by the Star Wars franchise and constitutional interpretation involves
confronting a fundamental question posed by the ideas of text and paratext: does it even matter
whether an idea or principle originates in text or paratext? In a definitional sense, of course, the
distinction holds. For example, when a movie trailer includes a bit of content (such as an image,
scene, or line of dialogue) which turns out not to be present in the final released film, that fact
cannot change the categorization of the material contained within the film as the text of the story
while the trailer content is paratext.
70
In a practical sense, however, perhaps it may not matter. To
continue the example, if the absence of that trailer content in the final released film is jarring,
confusing, or even disappointing, then the experience of the audience in receiving the text
nevertheless can be affected, and sometimes the immediate reaction to—or even the subsequent
interpretation of—the final text can be inextricably altered by the expectations or preconceptions
shaped by the paratext.
71
The desire to enforce the conceptual separation between text and
paratext is understandable, especially when the interpretation of fundamental principles of a
canon is at stake, but both Star Wars and constitutional law suggest that maintaining the
dichotomy ultimately is unsustainable.
A. Originalism’s Ambition of Doctrinal Retrenchment
It is true that many of the iconic principles of U.S. constitutional law—freedom of speech, due
process of law, the right to vote for our representatives, equality under the law—have grounding
in the text of the Constitution. But it is equally true that nearly all of the implementing
doctrines—rules and standards, famous and obscure—which actually give these principles their
operative substantive legal effect are found in the decisions of the U.S. Supreme Court
interpreting constitutional meaning. In 1954, the Court in Brown v. Board of Education finally
overruled Plessy and held unconstitutional racially segregated public schools: “in the field of
public education, the doctrine of ‘separate but equal’ has no place.”
72
It took another forty years
for the Court finally to definitively declare—in an opinion written by Justice Ruth Bader
Ginsburg, only the second woman to ever serve on the Court—that discrimination on the basis of
sex must be subject to “heightened scrutiny” under constitutional principles of equality.
73
In
Reynolds v. Sims, the Court ruled that state legislatures must be apportioned on the basis of
population, emphasizing that “[l]egislators represent people, not trees or acres.”
74
Three years
later in Katz v. United States, the Court required law enforcement agents to obtain search
warrants before wiretapping or electronically eavesdropping on telephone conversations between
70
See GRAY, supra note 12, at 47-52, 78-79. Among the recent Star Wars films, the Rogue One trailer in particular
contained numerous scenes which did not appear in the final movie. See Tom Butler, Rogue One trailer scenes that
aren’t in the movie, Yahoo Movies UK (Dec. 13, 2016), https://uk.movies.yahoo.com/rogue-one-trailer-scenes-
arent-slideshow-wp-170200810/photo-rogue-one-trailer-scenes-arent-photo-170200965.html (identifying and
explaining twelve such shots from trailer).
71
See GRAY, supra note 12, at 63-72. A similar dynamic exists when a movie is adapted from a previous work, such
as a novel or book series, where creators of the movie must account for expectations created by the source material.
See, e.g., id. at 119-25 (describing apprehension and anticipation by fans of Lord of the Rings book trilogy during
production of Peter Jackson’s movies); TRANFORMING HARRY: THE ADAPTATION OF HARRY POTTER IN THE
TRANSMEDIA AGE (John Alberti & P. Andrew Miller, eds., 2018); Rebecca Wei Hsieh, 12 Movie Changes That Hurt
The Hunger Games (And 8 That Saved It), ScreenRant (Jul. 9, 2018), https://screenrant.com/hunger-games-movie-
changes-saved/.
72
Brown v. Board of Education, 347 U.S. 483, 495 (1954).
73
United States v. Virginia, 518 U.S. 515, 531-34 (1996).
74
Reynolds v. Sims, 377 U.S. 533, 562 (1964).
Electronic copy available at: https://ssrn.com/abstract=3771460
Priester, Media Paratext and Constitutional Interpretation
16
private parties, even phone calls made from transparent phone booths on city streets: “the Fourth
Amendment protects people, not places.”
75
In between those two decisions came Miranda v.
Arizona and the now widely familiar advice-of-rights required of police before conducting
custodial police interrogation.
76
The government cannot criminally prosecute the use or
distribution of contraceptives,
77
compel individuals to salute the American flag or recite the
Pledge of Allegiance,
78
or censor the use of crass language in public places.
79
The many other
iconic examples are too numerous to list—though it is worth noting that many of them were
handed down over objections from dissenting justices, including some, like Miranda, that were
5-4 decisions.
In almost every practical and realistic sense, it is these Supreme Court decisions—the paratext
built upon the underlying text of the Constitution—that define and circumscribe U.S.
constitutional law. Many Americans, including many lawyers, would find it difficult to imagine
what U.S. constitutional law would be like without this paratext providing the implementing
doctrine and rhetoric to support and enforce the sparse underlying text.
Yet the ambition of originalism as a constitutional theory deliberately was to call into question
much of this familiar and valued paratext. Some early thought in what became the modern
originalist movement arose in the context of providing arguments for the unconstitutionality of
New Deal legislation, but the prominence of originalism surged after Brown v. Board of
Education based on the contention that the original meaning of the Fourteenth Amendment
permitted, rather than abolished, racial segregation.
80
Eventually originalism became the primary
constitutional theory offered by political conservatives in opposition to a wide variety of Court
decisions on liberty and equality from the 1950s to the 1970s, ultimately becoming a lodestar, if
not litmus test, for Supreme Court appointments by Republican presidents for the past forty
years.
81
Although originalism has been promoted in public discourse and scholarly work as a
principled and limiting constitutional theory—in (purported) contrast to the (supposedly)
unprincipled and unrestrained decision-making by the (usually) politically liberal justices on the
Court—the actual doctrinal consequences of implementing originalism in U.S. constitutional law
would be equally enormous, and probably more impactful and disruptive, than the Court’s
decades-long creation of the existing body of paratext.
82
For this reason, many originalist thinkers seek to find ways to avoid what surely would be widely
unpopular consequences of originalism. Robert Bork, one of the most prominent originalists of
the 1970s-80s, claimed that Brown was defensible on originalist grounds.
83
Justice Scalia
75
Katz v. United States, 389 U.S. 347, 351 (1967).
76
Miranda v. Arizona, 384 U.S. 436 (1966).
77
Griswold v. Connecticut, 381 U.S. 479 (1965); see also Eisenstadt v. Baird, 405 U.S. 438 (1972), Carey v.
Population Servs. Intl., 431 U.S. 678 (1977).
78
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).
79
Cohen v. California, 403 U.S. 15 (1971).
80
See, e.g., SEGALL, supra note 32, at 51, 60, 111.
81
See, e.g., Emily Bazelon, How Will Trump’s Supreme Court Remake America?, N.Y. TIMES MAG., Feb. 27, 2020;
SEGALL, supra note 32, at 52, 56, 62, 65, 73, 98, 113, 174, 180; Whittington, supra note 58, at 599-601, 603-05; see
also, e.g., KEN I. KERSCH, CONSERVATIVES AND THE CONSTITUTION: IMAGINING CONSTITUTIONAL RESTORATION IN
THE HEYDAY OF AMERICAN LIBERALISM (2019); STEVEN M. TELES, THE RISE OF THE CONSERVATIVE LEGAL
MOVEMENT: THE BATTLE FOR CONTROL OF THE LAW (2010).
82
See, e.g., SEGALL, supra note 32, at xiv-xv (foreword by Erwin Chemerinsky).
83
See ROBERT H. BORK, THE TEMPTING OF AMERICA 82 (1990). Bork’s nomination to the Supreme Court by
President Reagan, a Republican, in 1987 was rejected 42-58 by the Democratic majority in the U.S. Senate in
Electronic copy available at: https://ssrn.com/abstract=3771460
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17
conceded that he practiced a “faint-hearted” originalism that paid far more deference to stare
decisis in practice than the underlying theory conceptually supported.
84
When the Supreme Court
was presented in 2000 with a case in which the parties briefed and argued whether Miranda
should be overruled—a position that five sitting justices had expressly or impliedly taken in
previous cases—the Court ultimately reaffirmed Miranda by a 7-2 majority.
85
Recent scholarship
from self-described originalists has asserted that case law on topics such as sex discrimination
and same-sex marriage is defensible on originalist grounds—which is, to be charitable,
implausible if the methodology is truly originalist.
86
In the end, while the conceptual force of
originalism was intended to repudiate a wide swath of U.S. Supreme Court precedent, the reality
has been that many originalists have been wary of taking their constitutional theory to its logical
conclusion, functionally conceding to the ongoing stability of much of the Court’s paratext.
To be clear, and to be fair, originalists are not the only ones who take objection to U.S. Supreme
Court decisions adopting paratext they disagree with or even stridently oppose. Regardless of
one’s political views or constitutional values, it is likely that multiple important Court decisions
are troublesome. Whether Roe v. Wade should be restored to more vibrant protection or
overruled entirely is perhaps the most divisive ongoing controversy over the Court’s case law in
many decades.
87
Proponents of absolutist protection for free speech rights support the Court’s
decision in Citizens United v. United States, granting corporations a First Amendment right to
spend money on political speech, while others criticize and condemn the consequences of
corporate and “dark money” influence on the electoral process.
88
The Court’s decisions in Shelby
County v. Holder, District of Columbia v. Heller, and Burwell v. Hobby Lobby are opposed by
many political liberals; the decisions in Massachusetts v. EPA and Obergefell v. Hodges are
opposed by many political conservatives.
89
What all of these topics and disputes share, however,
is the reality that they are addressed not to the text of the Constitution, but to the Supreme
Court’s paratext of constitutional law.
significant part because of Bork’s strident defense of originalism; the seat was filled the next year by Anthony
Kennedy, who did not hold such views and was confirmed unanimously. In hindsight, it might seem odd that Justice
Scalia, by far the most visible proponent of originalism on the Court, also had been confirmed unanimously in 1986,
but at the time of his confirmation hearings he had been far less vocal and controversial than Bork. See generally,
e.g., SEGALL, supra note 32, at 76-81.
84
Antonin Scalia, Originalism: The Lesser Evil, 57 U. CINCI. L. REV. 849, 864 (1989); see also Randy Barnett,
Scalia’s Infidelity: A Critique of Faint-Hearted Originalism, 75 U. CINCI. L. REV. 7, 13 (2006) (“I would conclude
from his Taft Lecture and his behavior on the Court that Justice Scalia simply is not an originalist.”) (quoted in
SEGALL, supra note 32, at 122).
85
See Dickerson v. United States, 530 U.S. 428 (2000) (opinion of the Court by Rehnquist, C.J.); id. at 445-46
(Scalia, J., dissenting, joined by Thomas, J.) (“Justices whose votes are needed to compose today’s majority are on
record as believing that a violation of Miranda is not a violation of the Constitution.”) (emphasis in original) (citing
previous opinions written or joined by Chief Justice Rehnquist, Justice Kennedy, and Justice O’Connor).
86
SEGALL, supra note 32, at 104-115.
87
See, e.g., MARY ZIEGLER, ABORTION IN AMERICA: A LEGAL HISTORY, ROE V. WADE TO THE PRESENT (2020);
MARY ZIEGLER, AFTER ROE: THE LOST HISTORY OF THE ABORTION DEBATE (2015).
88
See, e.g., JANE MAYER, DARK MONEY: THE HIDDEN HISTORY OF THE BILLIONAIRES BEHIND THE RISE OF THE
RADICAL RIGHT (2016); Susanna Kim Ripken, Corporate First Amendment Rights After Citizens United: An
Analysis of the Popular Movement to End the Constitutional Personhood of Corporations, 14 U. PA. J. BUS. L. 209
(2011); see also Citizen United v. Federal Election Comm’n, 558 U.S. 310 (2010).
89
See Shelby County v. Holder, 570 U.S. 529 (2013); District of Columbia v. Heller, 554 U.S. 570 (2008); Burwell
v. Hobby Lobby, 573 U.S. 682 (2014); Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2006);
Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
Electronic copy available at: https://ssrn.com/abstract=3771460
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18
B. Star Wars’ Ambition of a Single Continuity
The collapse of the distinction between text and paratext is even more acute in Star Wars
because franchise messaging, over the span of many years, was at best inconsistent or confusing
and sometimes even deliberately conflated the two categories. Interestingly, the internal policies
at Lucasfilm did not waver: the Star Wars movies (and later The Clone Wars) created by George
Lucas held the position of text, while all other Star Wars material was paratext and accordingly
subject to being ignored, overwritten, or coopted by Lucas at any time.
90
But the manner in
which Star Wars was marketed and described to its audience, customers, and fans often
portrayed a different picture. Part of the responsibility for this miscommunication lies with
Lucasfilm itself, and the rest with the licensees who produced the great majority of the paratext,
and particularly the paratextual Expanded Universe lore and storytelling.
For about twenty years prior to 2014, the Star Wars franchise promoted the idea of a “single
continuity” as a distinctive feature of its story universe.
91
On the one hand, this served to set Star
Wars apart from other prominent franchises in the genre storytelling milieu. Unlike superhero
comics from Marvel or DC, Star Wars stories did not take place in a multiverse with alternate
versions of iconic characters, did not bring characters back from the dead after killing them off,
and did not reboot storylines to reset character arcs and plot arcs to enable multiple iterations of
origin stories.
92
Unlike Star Trek, where the films and television series had primacy and the
90
See PABLO HIDALGO, STAR WARS: THE ESSENTIAL READER’S COMPANION (2012). In the prefatory section
captioned “Canon and Continuity,” Hidalgo describes this longstanding policy: “The most definitive canon of the
Star Wars universe is encompassed by the feature films and television productions in which George Lucas is directly
involved. … But Lucas allows for an Expanded Universe that exists parallel to the one he directly oversees.” Id. at
ix. On the same page, Hidalgo describes the Star Wars Expanded Universe continuity as “a living document that
grows and evolves over time.” Id. In a later chapter introduction addressing the initial Expanded Universe material
telling Clone Wars stories and the subsequent The Clone Wars television series, Hidalgo writes: “In some notable
cases, these early stories did not align with the version of events that would later be established by George Lucas
and his team at Lucasfilm Animation. Some differences have proven more irreconcilable than others, and are noted
where appropriate. … As always, a story line direct from George Lucas trumps publishing continuity.” Id. at 75; see
also The Legendary Star Wars Expanded Universe Turns a New Page, StarWars.com (Apr. 25, 2014),
https://www.starwars.com/news/the-legendary-star-wars-expanded-universe-turns-a-new-page (“While Lucasfilm
always strived to keep the stories created for the EU consistent with our film and television content as well as
internally consistent, Lucas always made it clear that he was not beholden to the EU. … [His] stories are the
immovable objects of Star Wars history, the characters and events to which all other tales must align.”). Previously
an employee in the online and licensing divisions, in 2012 Hidalgo was selected as an original member of the
Lucasfilm Story Group; within a few years, he came to be viewed as the “Lucasfilm creative team’s public face” on
social media. GOLDING, supra note 25 at 199; see also TAYLOR, supra note 25, at 389-90, 410-13 (discussing
Hidalgo’s roles at Lucasfilm over time).
91
See, e.g., Matthew Freeman, Rebuilding Transmedia Star Wars: Strategies of Branding and Unbranding a Galaxy
Far, Far Away, in DISNEY’S STAR WARS, supra note 25, at 23; B.J. Priester, Path Dependence in Star Wars
Storytelling, FANgirl Blog (Aug. 2014), http://fangirlblog.com/2014/08/path-dependence-in-star-wars-storytelling/;
B.J. Priester, Resurrecting Legends: Is the Star Wars Reboot Gendered?, FANgirl Blog (Feb. 2017),
http://fangirlblog.com/2017/02/resurrecting-legends-star-wars-reboot-gendered/.
92
See, e.g., COCCA, supra note 46 (discussing examples of comic book superheroine reboots including Batgirl and
Wonder Woman at DC and Captain Marvel and the X-Men at Marvel). In The Phantom Menace, Darth Maul is
bisected at the waist by Obi-Wan Kenobi during the movie’s climatic battles, and paratextual materials released at
the time treated him as having been killed. Subsequently, Lucas returned Maul into the Star Wars timeline for The
Clone Wars animated series (and he then appeared in later stories, as well, including Star Wars Rebels and Solo).
Although it contradicted the preceding paratext, the context of his return in the canonical text of The Clone Wars
expressly established that Maul had never actually died in the first place, but rather had survived all along with help
from the unnatural powers offered the dark side of the Force.
Electronic copy available at: https://ssrn.com/abstract=3771460
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licensed novels had no binding effect on other stories, in Star Wars each subsequent novel or
comic had to account for and conform with not only Lucas’ works, but also the rest of the extant
Expanded Universe material, as well.
93
Lucasfilm and its licensees apparently believed—the
evidentiary basis for which has never been clear—that the existence and maintenance of this
distinguishing single continuity provided value-added to Star Wars as a franchise, resulting in
higher sales than otherwise would occur.
94
Many Star Wars Expanded Universe fans came to
accept this franchise conventional wisdom as received truth, creating a fandom dynamic in which
the perceived necessity of maintaining the single continuity became self-reinforcing between the
Expanded Universe segment of the franchise and many of its most reliable customers.
95
On the other hand, the “single continuity” principle also created expectations that Lucasfilm was
closely monitoring the integrity, coherence, and compliance of the various components of the
Expanded Universe to ensure a seamless and integrated past, present, and future for the story
universe. For example, fans became aware of the “Holocron” database, named after the devices
used to archive knowledge and secrets of the Jedi Order, begun in January 2000 and containing
tens of thousands of entries in which Lucasfilm tracked all manner of details about the Star Wars
universe, from character traits and the events in their story lives to planets, aliens, starships,
weapons, flora and fauna, and more.
96
Awareness of the Holocron led to an environment in
which consternation could be predicted whenever fans identified a “continuity error”—whether
substantial or inconsequential—in a piece of newly released material. How had the error slipped
through? Why hadn’t it been caught and corrected? How would the error be rectified in future
material? This in turn created something of a cottage industry of fans dedicated to proposing
“fixes” for these “errors,” ranging from the creative or clever to the exceedingly contrived. Some
of these fans successfully parlayed their deep knowledge of the lore and ability to negotiate the
most obscure minutiae into official contributions to the Expanded Universe—including the
ability to add new paratext to account for perceived problems with existing paratext.
97
(Such a
description might sound familiar to scholars of constitutional law and constitutional theory, as
well.)
Needless to say, these high expectations for the idea of a Star Wars single continuity turned out
to be unrealistic—and unmet. Even within the Expanded Universe itself, consistency of
encyclopedic lore proved elusive, and consistency of characterization even more so.
98
More
importantly, the interaction between text and paratext never aligned with the “single continuity”
93
See, e.g., Lee Hutchinson, Op-ed: Star Trek’s expanded universe is a glorious mess, Ars Technica (Jan. 1, 2014),
https://arstechnica.com/gadgets/2014/01/op-ed-star-treks-expanded-universe-is-a-glorious-mess/.
94
See, e.g., Chris Baker, Meet Leland Chee, the Star Wars Franchise Continuity Cop, WIRED (Aug. 18, 2008),
https://www.wired.com/2008/08/ff-starwarscanon/ (“To Chee, the orderliness of the Star Wars canon is what sets it
apart, what makes it feel more real than all those other franchises.”).
95
See, e.g., Priester, Path Dependence, supra note 91.
96
See TAYLOR, supra note 25, at 339; Leland Y. Chee, What is the Holocron?, StarWars.com,
https://www.starwars.com/news/what-is-the-holocron (July 20, 2012).
97
See Tricia Barr, What Exactly is an Uberfanboy?, FANgirl Blog (Apr. 25, 2011), http://fangirlblog.com/2011/
04/what-exactly-is-an-uberfanboy/; see also SUZANNE SCOTT, FAKE GEEK GIRLS: FANDOM, GENDER, AND THE
CONVERGENCE CULTURE INDUSTRY 144-183 (2019) (discussing “fanboy auteurs” and “fantrepreneurs” in media
fandom).
98
See, e.g., Tricia Barr, Fangirl Speaks Up: Star Wars Books and Me—Caught in a Bad Romance, FANgirl Blog
(Feb. 2011), http://fangirlblog.com/2011/02/fangirl-speaks-up-star-wars-books-bad-romance/; Tricia Barr, Fangirl
Speaks Up: The Missing Demographic, FANgirl Blog (Feb. 2011), http://fangirlblog.com/2011/02/fangirl-speaks-
up-fanfic/; Barr, Uberfanboy, supra note 97.
Electronic copy available at: https://ssrn.com/abstract=3771460
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messaging. Fortunately, George Lucas had long since instructed his Lucasfilm team to keep the
pre-Original Trilogy backstory off limits; for example, in the Expanded Universe stories Luke
and Leia did not learn the true identity of their birth mother until 2005, after the release of
Revenge of the Sith had completed the story of Anakin Skywalker and Padmé’s Amidala.
99
This
kept small the number of conflicts between the Prequel Trilogy and the pre-1999 Expanded
Universe, and it was fairly easy to distinguish or discount the now-obsolete details.
100
Even
Lucas’ decision in Attack of the Clones to create a backstory for Boba Fett, who had previously
not been off limits, did not cause major disruptions to the Expanded Universe, which quickly
reconciled multiple accounts of the bounty hunter’s origins by means of an in-universe shroud of
mystery suitable to a Wild West outlaw style character.
101
Only a few years later in 2008, though, Lucas’ animated series The Clone Wars metaphorically
began to drive a bulldozer through the extensive, interconnected, multimedia Expanded Universe
version of the war that had been released from 2002 to 2005. Some fans clamored for Lucasfilm
to require Lucas to conform to the existing Expanded Universe—an impossibility, naturally,
because that was not, and had never been, the franchise’s relationship between text and
paratext.
102
Other fans pressed the stewards of the Expanded Universe for explanations of how
the existing material would be reconciled with and conformed to the new Lucas material
103
—the
accurate framing, but still seeking devotion to a single franchise continuity that, as a practical
matter, no longer existed. During the early seasons of The Clone Wars, employees of Lucasfilm
repeatedly indicated publicly that the company internally had developed an ongoing timeline
which reconciled the Expanded Universe and Lucas versions of the war, but that it could not be
99
In 1996-97, the Black Fleet Crisis trilogy by Michael P. Kube-McDowell included a subplot in which Luke
Skywalker undertook a mission with a woman who claimed she could help him discover information about his
mother, but who turned out to have been deceiving him to obtain his aid for her own purposes. Over thirty in-
universe years after the Battle of Endor, Luke and Leia finally learned the truth about Padmé’s fate by recovering
data from the memory banks of R2-D2 in The Swarm War by Troy Denning, published in December 2005 following
the release of Episode III in May.
100
The most noticeable inconsistencies related to information concerning the Clone Wars, some of which occurred
because George Lucas altered his sparse Original Trilogy backstory ideas about the timing and nature of the war
while writing the Prequels. See, e.g., Matt Morrison, The Clone Wars Were Weirder Before The Star Wars Prequels,
ScreenRant (Nov. 3, 2018), https://screenrant.com/star-wars-clone-wars-before-prequels/.
101
See, e.g., Thomas Bacon, Star Wars Gave Boba Fett A REAL Name (But Lucas Changed It), ScreenRant (Sep. 5,
2019), https://screenrant.com/star-wars-boba-fett-name-jaster-mereel-retcon/; Megan Crouse, Star Wars: 10 Boba
Fett Facts You Might Not Know, Den of Geek (Dec. 18, 2019), https://www.denofgeek.com/movies/star-wars-boba-
fett-facts/; Tom Hutchens, Mandalorian Mysteries: Who Was Jaster Mereel?, StarWars.com (May 4, 2014),
https://www.starwars.com/news/mandalorian-mysteries-who-was-jaster-mereel.
102
See Dunc, “You came in that thing? You’re braver than I thought.” Canon, continuity, and the Expanded
Universe, ClubJade (Apr. 25, 2011), https://clubjade.net/you-came-in-that-thing-youre-braver-than-i-thought-canon-
continuity-and-the-expanded-universe/ (describing online fan petition “asking that Lucasfilm respect what’s already
been established in [Expanded Universe] continuity before overwriting it” in The Clone Wars, and quoting response
by Leland Chee). Fans aware of Lucasfilm’s public statements about the Holocron understood that the database
encompassed the distinction: descriptively, information from the movies was labeled as “G-canon” (i.e., George)
while information from the Expanded Universe was labeled as “C-canon” (i.e., Continuity); normatively, in the
event of a conflict requiring resolution for purposes of a story or other franchise product, the G-level information
was dispositive for Lucasfilm or its licensees. See, e.g., Canon, Wookieepedia,
https://starwars.fandom.com/wiki/Canon (explaining distinction and quoting comments from Lucasfilm employees).
103
See, e.g., Leland Chee, Chronicling the Clone Wars, StarWars.com (Sep. 14, 2012), https://www.starwars.com/
news/chronicling-the-clone-wars/ (“Without a doubt, the most often asked question I’ve been asked since The Clone
Wars started four years ago is, ‘How does The Clone Wars fit into the existing Expanded Universe Clone Wars
timeline?’”).
Electronic copy available at: https://ssrn.com/abstract=3771460
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released to fans until the television series was completed (and, in the end, no such timeline was
ever published).
104
One Expanded Universe author, Karen Traviss, who at that point had written
ten Star Wars novels and built a dedicated base of fans around her work, quit working for the
franchise and publicly explained the reasons on her blog: to continue writing for Star Wars, she
would have been required to abandon the lore and ideas she had created for the Mandalorian
culture, and instead conform in future stories to the new and different lore set out by Lucas in
The Clone Wars series, a condition that Lucasfilm was entitled to impose but that Traviss had no
interest in accepting.
105
Years before it became official, the Star Wars single continuity was
already dead.
The acquisition of Lucasfilm by Disney in late 2012 could have led to a reevaluation of the
premise that Star Wars should rely on a single continuity as a key franchise messaging point.
Instead, the franchise doubled-down on the idea—only to quickly discover that its new
continuity generated more problems faster than the old one had. With the first Disney-era Star
Wars film scheduled for release in December 2015, Lucasfilm officially announced in April
2014 that the Expanded Universe would be rebranded as Star Wars Legends and would not form
the basis for ongoing or upcoming Star Wars storytelling.
106
For a wide variety of reasons, this
was a wise move for the franchise, and it generated only a small amount of angry backlash from
the fandom.
107
In the very same announcement, however, Lucasfilm also expressed its intention
104
See, e.g., Leland Chee (@HolocronKeeper), Twitter (Aug. 10, 2009, 11:00), https://twitter.com/
HolocronKeeper/status/3226162684 (“To clarify, the Clone Wars TIMELINE won’t get untangled until we reach
the end of the series. Untangling other stuff is ongoing.”); Star Wars: The Clone Wars (TV series), Wookieepedia
(visited July 1, 2020), https://starwars.fandom.com/wiki/Star_Wars:_The_Clone_Wars_(TV_series) (noting that
events in the animated series “directly contradict previously published [Expanded Universe] sources and require
retcons and major shifts in the previously established Clone Wars timeline, which were never determined” and citing
public statements by Lucasfilm employees who “maintained that the complications would eventually be worked
out”).
105
See Karen Traviss, Why Have You Stopped Writing for Star Wars? (Dec. 2009), http://www.karentraviss.com/
page22/files/Why_have_you_stopped_writing_St.html (“The series itself was brought to a premature end by
changes in official canon that were beyond my control.”).
106
See Legendary Star Wars Expanded Universe, supra note 90 (“In order to give maximum creative freedom to the
filmmakers and also preserve an element of surprise and discovery for the audience, Star Wars Episodes VII-IX will
not tell the same story told in the post-Return of the Jedi Expanded Universe.”). Although the Star Wars Legends
stories have not been continued or directly adapted since 2014, much of the lore generated by those materials
remains in place. See, e.g., Priester, Resurrecting Legends, supra note 91. For example, Lucasfilm continues to use
the same galactic map created during the Expanded Universe era, and chose not to rename the multitude of aliens,
species, vehicles, and technology from decades of Star Wars material. The animated television series Star Wars
Rebels incorporated a number of starships, planets, and other elements from Legends sources. The Rebels series also
reintroduced a fan-favorite character from the Legends stories, the Imperial grand admiral named Thrawn, which
later led to new novels by Timothy Zahn involving the character’s new Disney-era incarnation rather than the prior
Legends incarnation. Lucasfilm messaged this return more carefully, ensuring that fans understood that the presence
of the character in new stories did not carry forward any of the stories or other characters from the Legends tales in
which Thrawn had appeared. See Tobias Kent, “It’s True, All of It!” Canonicity and Character Identity in Star
Wars, Image, Jan. 2019 (Special Issue: Recontextualizing Characters), at 60, http://www.gib.uni-
tuebingen.de/image/ausgaben-3?function=fnArticle&showArticle=519.
107
See Michelle Kent, “You Die! You Know That Right? You Don’t Come Back!”: Fans Negotiating Disney’s
(De)Stabilized Star Wars Canon, in DISNEY’S STAR WARS, supra note 25, at 221; see also, e.g., Dunc, Star Wars
Books shuts down Facebook page to spare fans movie spoilers from disgruntled Legends backers, ClubJade (Dec.
16, 2015), https://clubjade.net/star-wars-books-shuts-down-facebook-page-to-spare-fans-movie-spoilers/; Eric
Geller, Anger Leads To Hate: Inside The Movement To Save The Expanded Universe, TheForce.Net (Oct. 7, 2014),
http://www.theforce.net/story/front/Anger_Leads_To_Hate_Inside_The_Movement_To_Save_The_Expanded_Univ
Electronic copy available at: https://ssrn.com/abstract=3771460
Priester, Media Paratext and Constitutional Interpretation
22
to have its “Story Group” implement an even more integrated single continuity than ever before:
instead of movie text and the rest paratext, everything would be text.
108
Going forward, not only
would the Star Wars movies and television series have canonical weight, but so too would
novels, comics, and other storytelling.
Unsurprisingly, this ambitious idea quickly collapsed under the realities of the production
process for Star Wars stories. Four of the first five new Star Wars movies—directed and written
by a total of 14 men rather than the unitary guidance of George Lucas
109
—involved reshoots,
pickup filming, and editing until the very last days before the films needed to be locked for
release,
110
resulting in numerous instances where information previously provided for use in
novels, comics, reference books, or other materials turned out not to align with the final movie.
With Poe Dameron alone, for example, the Star Wars movies, books, and comics have given
inconsistent accounts of his backstory before joining the Resistance and when and how many
times he interacted with Lor San Tekka on Leia Organa’s behalf.
111
After five years, the Story
Group had been unable to exceed, and arguably fared worse than, the previous system of Star
Wars text and paratext.
erse_160167.asp; Jacob Hall, ‘Star Wars’ Fans Bought a Billboard Demanding the Return of the Expanded
Universe, /Film (Apr. 20, 2016), https://www.slashfilm.com/star-wars-billboard/.
108
See Legendary Star Wars Expanded Universe, supra note 90 (“[T]he company for the first time ever has formed
a story group to oversee and coordinate all Star Wars creative development. … And this is just the beginning of a
creatively aligned program of Star Wars storytelling created by the collaboration of incredibly talented people united
by their love of that galaxy far, far away.”).
109
Directors included J.J. Abrams (The Force Awakens and The Rise of Skywalker), Gareth Edwards and Tony
Gilroy (Rogue One), Rian Johnson (The Last Jedi), and Phil Lord, Chris Miller, and Ron Howard (Solo). Credits for
story or screenplay included Abrams, Gilroy, and Johnson, as well as Michael Arndt (The Force Awakens),
Lawrence Kasdan (The Force Awakens and Solo), John Knoll, Gary Whitta, and Chris Weitz (Rogue One), Jon
Kasdan (Solo), and Chris Terrio (The Rise of Skywalker). For the six movies in the Original Trilogy and Prequel
Trilogy, Lucas directed four (A New Hope and the three Prequels) and had sole or shared screenplay credit on five,
with “story by” credit on the other (The Empire Strikes Back).
110
Of the five films, only The Last Jedi was completed well in advance, three months ahead of theatrical release. See
Devan Coggan, Star Wars: The Last Jedi has officially wrapped, says director Rian Johnson, Entertainment Weekly
(Sep. 22, 2017), https://ew.com/movies/2017/09/22/star-wars-last-jedi-wrapped-rian-johnson/; cf., e.g., Tom Butler,
Rogue One’s editors reveal the scenes added in the Star Wars standalone reshoots (exclusive), Yahoo Movies UK
(Jan. 3, 2017), https://uk.movies.yahoo.com/rogue-ones-editors-reveal-scenes-added-in-the-star-wars-standalone-
reshoots-exclusive-110124381.html; Kristopher Tapley, Inside ‘Solo’: A ‘Star Wars’ Story’s Bumpy Ride to the Big
Screen, VARIETY (May 22, 2018), https://variety.com/2018/film/features/solo-a-star-wars-story-directors-reshoots-
ron-howard-1202817841/; Katherine Webb, Wow, Star Wars: The Rise Of Skywalker Had Months Less Time Than
The Force Awakens, CinemaBlend (Jan. 5, 2020), https://www.cinemablend.com/news/
2487812/wow-star-wars-the-rise-of-skywalker-had-months-less-time-than-the-force-awakens.
111
For four years, materials portrayed Poe Dameron as a career military officer with lifelong dedication first to the
New Republic and then to the Resistance. See, e.g., GREG RUCKA, STAR WARS: BEFORE THE AWAKENING (2015),
CHARLES SOULE, STAR WARS: POE DAMERON vols. 1-7 (Marvel Comics, 2016-2018), Tom Taylor, Age of
Resistance—Poe Dameron #1 (Marvel Comics, Aug. 29, 2019). The film The Rise of Skywalker, by contrast,
abruptly indicated that Dameron had been a “spice runner” (i.e., illegal narcotics smuggler) at some point in his
youth. See PABLO HIDALGO, STAR WARS: THE RISE OF SKYWALKER: THE VISUAL DICTIONARY 90-91 (2019)
(addressing discrepancy by indicating Dameron “ran away from home” for a period before enlisting in the New
Republic military). The inconsistency involving Lor San Tekka appears in the books and comics. Compare
MICHAEL KOGGE, POE DAMERON: FLIGHT LOG (2016) (Dameron has never met San Tekka before the events of The
Force Awakens), with SOULE, supra, vol. 4 (2018) (Dameron rescues and conducts a lengthy escape with San Tekka
during a mission prior to The Force Awakens).
Electronic copy available at: https://ssrn.com/abstract=3771460
Priester, Media Paratext and Constitutional Interpretation
23
Multiple times over three decades, Lucasfilm sought to rely upon a distinction between text and
paratext to redefine the interpretive boundaries of the Star Wars canon. Each time, the stewards
of the franchise discovered to their consternation that the meaning of Star Wars to the overall fan
interpretive community—encompassing the highly engaged base of dedicated fans as well as the
impressions and understandings held by the broader general audience—could not be cleanly
disaggregated into text and paratext. Lucasfilm may own Star Wars and the corresponding legal
rights to produce official works and licensed derivative works, but the meaning of Star Wars has
long since passed beyond its exclusive corporate control.
V. Conclusion
The comparison between constitutional interpretation and the concept of media paratext
demonstrates the impossibility of any aspiration to sever the interpretation of an iconic text from
the full range of associated materials that unavoidably inform our understanding of it. Despite
protestations or pretensions to the contrary, the canonical meanings of a text—whether in the
Star Wars franchise or in U.S. constitutional law—inevitably are shaped and reshaped by the
interpretive influence of paratext. In the end, the conceit of a consistent and enforceable single
continuity for the fictional Star Wars universe proved to be a fiction of its own, too. In U.S.
constitutional theory, the goal of creating a single method of interpretation capable of generating
a consistent, reliable, and uncontroversial set of paratext is another such fiction—and so too is
the notion of a reboot, a kind of doctrinal clean slate or fresh start, in which only originalist
paratext governs the interpretive meaning of the constitutional text. Just as Lucasfilm cannot
control how Star Wars is given meaning by the interpretive community built up around the
franchise, the interpretive community built up around the U.S. Constitution is too large and too
longstanding for any single interpretive perspective to demand exclusivity in accuracy, much less
legitimacy. Constitutional law is paratext—the kind that has long since overtaken its text.
Electronic copy available at: https://ssrn.com/abstract=3771460
