Law Commons^™

Taking Text Too Seriously: Modern Textualism, Original Meaning, And The Case Of Amar's Bill Of Rights, William Michael Treanor

Michigan Law Review

Championed on the Supreme Court by Justice Scalia and Justice Thomas and in academia most prominently by Professor Akhil Amar textualism has emerged within the past twenty years as a leading school of constitutional interpretation. Textualists argue that the Constitution should be interpreted in accordance with its original public meaning, and in seeking that meaning, they closely parse the Constitution's words and grammar and the placement of clauses in the document. They have assumed that this close parsing recaptures original meaning, but, perhaps because it seems obviously correct, that assumption has neither been defended nor challenged. This Article uses Professor …

International Law And Constitutional Interpretation: The Commander In Chief Clause Reconsidered, Ingrid Brunk Wuerth

Michigan Law Review

The Commander in Chief Clause is a difficult, underexplored area of constitutional interpretation. It is also a context in which international law is often mentioned, but not fully defended, as a possible method of interpreting the Constitution. This Article analyzes why the Commander in Chief Clause is difficult and argues that international law helps resolve some of the problems that the Clause presents. Because of weaknesses in originalist analysis, changes over time, and lack of judicial competence in military matters, the Court and commentators have relied on second-order interpretive norms like congressional authorization and executive branch practice in interpreting the …

The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash

ExpressO

For the past several decades, the majority of courts and commentators have viewed the Ninth Amendment as a provision justifying judicial enforcement of unenumerated individual rights against state and federal abridgment. The most influential advocate of this libertarian reading of the Ninth has been Professor Randy Barnett who has argued in a number of articles and books that the Ninth was originally understood as guarding unenumerated natural rights. Recently uncovered historical evidence, however, suggests that those who framed and ratified the Ninth Amendment understood the Clause as a guardian of the retained right to local self-government. Recognizing the challenge this …

Why Justice Scalia Should Be A Constitutional Comparativist ... Sometimes, David C. Gray

Faculty Scholarship

The burgeoning literature on transjudicialism and constitutional comparativism generally reaffirms the familiar lines of contest between textualists and those more inclined to read the Constitution as a living document. As a consequence, it tends to be politicized, if not polemic. This article begins to shift the debate toward a more rigorous focus on first principles. In particular, it argues that full faith to the basic commitments of originalism, as advanced in Justice Scalia's writings, opinions, and speeches, requires domestic courts to consult contemporary foreign sources when interpreting universalist language found in the Constitution. While the article does not propose a …

Originalism, Popular Sovereignty And Reverse Stare Decisis, Kurt T. Lash

Law Faculty Publications

Although all interpretive methods must grapple with the issue of stare decisis, the issue is particularly acute for originalists due to the potentially radical discontinuity between original meaning and modern doctrine. An unmediated enforcement of original understanding of the Constitution would likely reverse countless precedents and impose unacceptably high costs in terms of the rule of law. On the other hand, upholding a precedent despite its variance with the original understanding undermines the very legitimacy of legal review according to most theories of originalism. Focusing on the most common normative basis for originalism, popular sovereignty, the article identifies those cases …

Storm In A Teacup: The U.S. Supreme Court’S Use Of Foreign Law, Austen L. Parrish

Articles by Maurer Faculty

In this Article, Professor Parrish explores the legitimacy of the U.S. Supreme Court's use of foreign law in constitutional adjudication. In recent years, the U.S. Supreme Court has used foreign law as persuasive authority in a number of highly contentious cases. The backlash has been spirited, with calls for foreign law to be categorically barred from constitutional adjudication, and even for Justices to be impeached if they cite to foreign sources. Last year, the condemnation of comparative constitutionalism reached a high note, as a barrage of scholarship decried the practice as illegitimate and a threat to our national sovereignty. The …

Does Due Process Have An Original Meaning? On Originalism, Due Process, Procedural Innovation...And Parking Tickets, Lawrence Rosenthal

Oklahoma Law Review

No abstract provided.

The Progressive Political Power Of Balkin's "Original Meaning", Dawn E. Johnsen

Articles by Maurer Faculty

No abstract provided.

The Balkanization Of Originalism, James E. Fleming

Faculty Scholarship

Are we all originalists now? If anything would prompt that question, it would be Ronald Dworkin and Jack Balkin dressing up their theories in the garb of originalism (or, at any rate, being interpreted as originalists). For they are exemplars of two bete noires of originalism as conventionally understood: namely, the moral reading of the Constitution, and pragmatic, living constitutionalism, respectively.' Yet in recent years Dworkin has been interpreted as an abstract originalist2 and Balkin has now embraced the method of text and principle, which he presents as a form of abstract originalism.'

Why Supermajoritarianism Does Not Illuminate The Interpretive Debate Between Originalists And Non-Originalists, Ethan J. Leib

Faculty Scholarship

In A Pragmatic Defense of Originalism, they seek to explain why supermajoritarianism furnishes a new pragmatic defense of originalism. In this Essay, I dispute each of their substantive claims. First, I argue that there is nothing newly pragmatic about their defense. Although they claim to want to make originalists and pragmatists friends, nothing about their project is likely to accomplish this matchmaking. Second, I argue that there is no reason to believe that constitutional entrenchments produced under supermajoritarian decision rules are any more desirable as a general matter than rules produced under other, more relaxed, decision rules. At the core …

The Perpetual Anxiety Of Living Constitutionalism, Ethan J. Leib

Faculty Scholarship

It certainly seems like the originalists are winning. Professor Jack Balkin--finding that he couldn't beat 'em--joined them. Living constitutionalists used to turn to Balkin as a reliable advocate; he recently wrote “we are all living constitutionalists now.” But Balkin has forsaken them. Losing such an important advocate might be a sign that what some once deemed the “ascendant” and dominant theory in constitutional interpretation is on the decline. Still, don't count living constitutionalism out of the game just yet--and don't think one can embrace Balkin's approach and a true living constitutionalism at the same time.

Underlying Principles, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In his forthcoming article, Original Meaning and Abortion, Jack Balkin makes the startling disclosure that he is now an originalist. "[C]onstitutional interpretation," he writes, "requires fidelity to the original meaning of the Constitution and to the principles that underlie the text. The task of interpretation is to look to original meaning and underlying principle and decide how best to apply them in current circumstances. I call this the method of text and principle."

In this brief reply, the author cautions that, to remain faithful to the Constitution when referring to underlying principles, we must never forget it is a text …

Taking Text Too Seriously: Modern Textualism, Original Meaning, And The Case Of Amar's Bill Of Rights, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Championed on the Supreme Court by Justices Scalia and Thomas and championed in academia most prominently by Professor Akhil Amar, textualism has in the past twenty years emerged as a leading school of constitutional interpretation. Textualists argue that the Constitution should be interpreted in accordance with its original public meaning and, in seeking that meaning, they closely parse the Constitution's words and grammar and the placement of clauses in the document. They have assumed that this close parsing recaptures original meaning, but, perhaps because it seems obviously correct, that assumption has neither been defended nor challenged. This article uses Professor …