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New: Statement of Lawrence B. Solum: Hearings on the Nomination of the Honorable Neil M. Gorsuch to be an Associate Justice of the Supreme Court of the United States

Sat, 25 Mar 2017 08:11:30 +0000

This statement addresses the nature of originalism. Originalism consists of three core ideas: (1) the original meaning of the constitutional text is its public meaning; (2) the original meaning of the text is fixed at the time the text was framed and ratified; and, (3) judges should be bound by the original meaning of the text. Much of the public discussion of originalism has focused on myths: originalism does not attempt to answer the question, "What would Madison do?," and many other charges against originalism are mythical as well. Originalism is in the mainstream of American jurisprudence historically, and originalism should be acceptable to Americans from a broad range of political orientations. The two core arguments for originalism focus on the rule of law and legitimacy.

New: The Constraint Principle: Original Meaning and Constitutional Practice

Fri, 24 Mar 2017 18:03:55 +0000

Originalism is a family of constitutional theories (almost all of which) agree that the original meaning of the constitutional text should constrain constitutional practice. Call this idea the “Constraint Principle.” Provisionally, the Constraint Principle is the claim that (at a minimum) the content of constitutional doctrine and the decision of constitutional cases should be consistent with the original meaning of the constitutional text. This principle has the implication that constitutional actors, including the Supreme Court, adopt constitutional constructions that effectively amend the Constitution. The aim of this article is to explicate and justify the Constraint Principle. Part I explores the role of the Constraint Principle in contemporary constitutional theory, answering the question “what is originalism?” and laying out the most important forms of nonoriginalism and living constitutionalism. Part II excavates the conceptual foundations of the idea of constraint and ...

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 ...