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REVISION: Originalist Methodology

Wed, 08 Mar 2017 05:45:52 +0000

This essay sketches an originalist methodology using ideas from legal theory and theoretical linguistics, including the distinctions between interpretation and construction and between semantics and pragmatics. The Essay aims to dispel a number of misconceptions about the methods used by originalists. Among these is the notion that originalists rely on dictionary definitions to determine the communicative content of the constitutional text. Although dictionaries may play some role, the better approach emphasizes primary evidence such as that provided by corpus linguistics. Another misconception is that originalists do not consider context; to the contrary, the investigation of context plays a central role in originalist methodology. Part I of this Essay articulates a theoretical framework that draws on ideas from contemporary legal theory and linguistics. Part II investigates methods for determining the constitutional text’s semantic content. Part III turns to methods for ...

New: Republican Constitutionalism

Sat, 26 Mar 2016 09:25:43 +0000

This essay brings the ideas presented in "Our Republican Constitution" by Randy E. Barnett into juxtaposition with two other important ideas in the broad tradition of republican constitutional thought. The first of these ideas is virtue (or human excellence) in the classic or Aristotelian sense of that word. The second idea is liberty as that concept was understood in the republican political thought. Once these two ideas are brought into conversation with the notion of individual sovereignty, we can begin to glimpse a revised vision of republican constitutionalism. Although this vision has much in common with that offered by Professor Barnett, there are differences as well. Part I explicates a theory of republican virtue that draws on Aristotle’s theory of the human excellences as developed in contemporary virtue ethics, arguing that virtue is both a necessary means and the primary end of a republican constitution. Part II turns to the notion of republican liberty (or ...