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“To Assemble Together For Their Common Good”: History, Ethnography, And The Original Meanings Of The Rights Of Assembly And Speech, Saul Cornell

Fordham Law Review

The Whiskey Rebellion is not generally a major focus in constitutional histories or casebooks. Given this fact, it is hardly surprising that the 1795 case Respublica v. Montgomery seldom figures as more than a minor footnote in scholarly writing about early American constitutional development, if it receives any attention at all. The case has little precedential value for modern First Amendment doctrine and only obliquely implicates larger jurisprudential questions about the rights of assembly and freedom of expression. In strictly doctrinal terms, Montgomery is primarily about the obligation of a justice of the peace to put down a riot, not …

Historians And The New Originalism: Contextualism, Historicism, And Constitutional Meaning, Martin S. Flaherty

Fordham Law Review

Toward that end, this Foreword addresses three matters. First, it considers why the use of history in constitutional interpretation is inescapable. Next, it suggests that the Essays in this forum do not go far enough in debunking the idea of “public meaning” originalism as a serious alternative to previous approaches. Finally, the balance of this Foreword reviews the also perhaps inescapable misuses of history that constitutional interpretation invites and considers the type of misuse that public meaning originalism represents.

Historicism And Holism: Failures Of Originalist Translation, Jonathan Gienapp

Fordham Law Review

For as long as the U.S. Constitution has existed, Americans have appealed to the history of its creation to interpret its meaning. But only since the advent of originalism—the well-known constitutional theory that requires interpreting the Constitution today in accordance with its original meaning—has historical study been so immediately implicated by constitutional interpretation. Despite potential, though, for meaningful exchange between originalists and historians, little has taken place. That originalism plays an ever-growing role in contemporary political culture only makes the lack of dialogue all the more unfortunate.

Outsourcing The Law: History And The Disciplinary Limits Of Constitutional Reasoning, Helen Irving

Fordham Law Review

Debates about the use of history in constitutional interpretation find their primary nourishment in the originalism debate. This has generated a vast amount of literature, but also narrowed the terms of the debate. Originalism is a normative commitment wrapped in a questionable methodological confidence. Regardless of the multiple forms originalism takes, originalists are confident that the meaning (in the sense of intention) that animated the framing of the Constitution can be ascertained and, indeed, that they can ascertain it. The debate has largely focused, then, on whether modern-day scholars and jurists can ascertain original historical meaning or, alternatively, whether they …

Tone Deaf To The Past: More Qualms About Public Meaning Originalism, Jack Rakove

Fordham Law Review

With some apologies for a vast degree of oversimplification, let us stipulate that there are two main forms of originalism. One is known as “semantic” or “public meaning” originalism. Its leading advocates include Lawrence Solum, Keith Whittington, and Randy Barnett (professional friends, all). The leading premise of semantic originalism is that the meaning of the constitutional text—or, more specifically, of its individual clauses—was fixed at the moment of its adoption. Under this view, the goal of constitutional interpretation is to recover that original meaning, and the best way to do that pivots on reconstructing how an informed reader, whether a …

The Problem Of Presidential Inability—Will Congress Ever Solve It?, John D. Feerick

Fordham Law Review

One of the most critical and intriguing constitutional questions ever presented for solution is: What happens when the President of the United States becomes incapable of discharging the powers and duties of his office? Does the Vice-President "become President" for the remainder of the term or does he merely "act as President" during the period of the inability? The Constitution is not explicit..

Statutory Restrictions On Concealed Carry: A Five-Circuit Shoot Out, Justine E. Johnson-Makuch

Fordham Law Review

In District of Columbia v. Heller, the U.S. Supreme Court clarified a citizen’s core Second Amendment right to keep a firearm at home; however, the Court left open the question of how the Second Amendment applies beyond the home. Since Heller, lower courts have struggled to determine the constitutionality of concealed carry laws in light of this new understanding of the Second Amendment.

Many states have enacted laws that restrict a citizen’s ability to obtain a concealed carry permit, and some of the restrictions are not controversial, such as the requirements to be above a certain age and have a …