Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 30 of 60
Full-Text Articles in Law
“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
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
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
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
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 Arduous Virtue Of Fidelity: Originalism, Scalia, Tribe, And Nerve, Ronald Dworkin
The Arduous Virtue Of Fidelity: Originalism, Scalia, Tribe, And Nerve, Ronald Dworkin
Fordham Law Review
Proper constitutional interpretation takes both text and past practice as its object: Lawyers and judges faced with a contemporary constitutional issue must try to construct a coherent, principled, and persuasive interpretation of the text of particular clauses, the structure of the Constitution as a whole, and our history under the Constitution—an interpretation that both unifies these distinct sources, so far as this is possible, and directs future adjudication. They must seek, that is, constitutional integrity. So fidelity to the Constitution's text does not exhaust constitutional interpretation, and on some occasions overall constitutional integrity might require a result that could …
The Inclusiveness Of The New Originalism, James E. Fleming
The Inclusiveness Of The New Originalism, James E. Fleming
Fordham Law Review
No abstract provided.
Editors’ Foreword, Editors
The Gravitational Force Of Originalism, Randy E. Barnett
The Gravitational Force Of Originalism, Randy E. Barnett
Fordham Law Review
In Part I of this Article, I describe four aspects of the New Originalism: First, New Originalism is about identifying the original public meaning of the Constitution rather than the original Framers’ intent. Second, the interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry. Third, there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed. Finally, distinguishing between the activities of interpretation and construction identifies the limit of the New Originalism, which is only a theory of interpretation. In …
On What Distinguishes New Originalism From Old: A Jurisprudential Take, Mitchell N. Berman, Kevin Toh
On What Distinguishes New Originalism From Old: A Jurisprudential Take, Mitchell N. Berman, Kevin Toh
Fordham Law Review
No abstract provided.
Meaning And Belief In Constitutional Interpretation, Andrei Marmor
Meaning And Belief In Constitutional Interpretation, Andrei Marmor
Fordham Law Review
No abstract provided.
Deferentialism: A Post–Originalist Theory Of Legal Interpretation, Scott Soames
Deferentialism: A Post–Originalist Theory Of Legal Interpretation, Scott Soames
Fordham Law Review
No abstract provided.
Originalism, Vintage Or Nouveau: “He Said, She Said” Law, Tara Smith
Originalism, Vintage Or Nouveau: “He Said, She Said” Law, Tara Smith
Fordham Law Review
No abstract provided.
The New Originalism And The Uses Of History, Jack M. Balkin
The New Originalism And The Uses Of History, Jack M. Balkin
Fordham Law Review
Central to the new originalism is the distinction between constitutional interpretation and constitutional construction. Interpretation tries to determine the Constitution’s original communicative content, while construction builds out doctrines, institutions, and practices over time. Most of the work of constitutional lawyers and judges is constitutional construction.
The distinction between interpretation and construction has important consequences for constitutional theory. In particular, it has important consequences for longstanding debates about how lawyers use history and should use history.
First, construction, not interpretation, is the central case of constitutional argument, and most historical argument occurs in the construction zone.
Second, although people often associate …
Meaning And Understanding In The History Of Constitutional Ideas: The Intellectual History Alternative To Originalism, Saul Cornell
Meaning And Understanding In The History Of Constitutional Ideas: The Intellectual History Alternative To Originalism, Saul Cornell
Fordham Law Review
No abstract provided.
Original Meaning, Precedent, And Popular Sovereignty?: Whittington Et Al. V. Lincoln Et Al., Leslie F. Goldstein
Original Meaning, Precedent, And Popular Sovereignty?: Whittington Et Al. V. Lincoln Et Al., Leslie F. Goldstein
Fordham Law Review
No abstract provided.
Accepting Contested Meanings, Bernadette Meyler
Accepting Contested Meanings, Bernadette Meyler
Fordham Law Review
No abstract provided.
The Observer Effect: National Security Litigation, Executive Policy Changes, And Judicial Deference, Ashley S. Deeks
The Observer Effect: National Security Litigation, Executive Policy Changes, And Judicial Deference, Ashley S. Deeks
Fordham Law Review
The national security deference debate has reached a stalemate. Those favoring extensive deference to executive branch national security decisions celebrate the limited role courts have played in reviewing those policies. The executive, they contend, is constitutionally charged with such decisions and structurally better suited than the judiciary to make them. Those who bemoan such deference fear for individual rights and an imbalance in the separation of powers. Yet both sides assume that the courts’ role is minimal. Both sides are wrong.
This Article shows why. While courts rarely intervene in national security disputes, the Article demonstrates that they nevertheless play …
Originalism: A Critical Introduction, Keith E. Whittington
Originalism: A Critical Introduction, Keith E. Whittington
Fordham Law Review
The theory of originalism is now well into its second wave. Originalism first came to prominence in the 1970s and 1980s as conservative critics reacted to the decisions of the Warren Court, and the Reagan Administration embraced originalism as a check on judicial activism. A second wave of originalism has emerged since the late 1990s, responding to earlier criticisms and reconsidering earlier assumptions and conclusions. This Article assesses where originalist theory currently stands. It outlines the points of agreement and disagreement within the recent originalist literature and highlights the primary areas of continuing separation between originalists and their critics.
Originalism, The Why And The What, Larry Alexander
Originalism, The Why And The What, Larry Alexander
Fordham Law Review
No abstract provided.
Originalism And Constitutional Construction, Lawrence B. Solum
Originalism And Constitutional Construction, Lawrence B. Solum
Fordham Law Review
Constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decisions of constitutional cases or issues by judges and other officials. The interpretation–construction distinction, frequently invoked by contemporary constitutional theorists and rooted in American legal theory in the nineteenth and twentieth centuries, marks the difference between these two activities.
This Article advances two central claims about constitutional construction. First, constitutional construction is ubiquitous in constitutional practice. The central warrant for this claim is conceptual: …
The New Originalism And The Foreign Affairs Constitution, Andrew Kent
The New Originalism And The Foreign Affairs Constitution, Andrew Kent
Fordham Law Review
No abstract provided.
Process Theory, Majoritarianism, And The Original Understanding, William Michael Treanor
Process Theory, Majoritarianism, And The Original Understanding, William Michael Treanor
Fordham Law Review
No abstract provided.
Second-Order Perfectionism, Cass R. Sunstein
Originalism As A Political Practice: The Right's Living Constitution, Robert Post, Reva Siegel
Originalism As A Political Practice: The Right's Living Constitution, Robert Post, Reva Siegel
Fordham Law Review
No abstract provided.
"Bound Fast And Brought Under The Yokes": John Adams And The Regulation Of Privacy At The Founding, Allison L. Lacroix
"Bound Fast And Brought Under The Yokes": John Adams And The Regulation Of Privacy At The Founding, Allison L. Lacroix
Fordham Law Review
No abstract provided.
Old Dictionaries And New Textualists, Rickie Sonpal
Old Dictionaries And New Textualists, Rickie Sonpal
Fordham Law Review
No abstract provided.
Fidelity As Integrity: Colloquy
Translation: Who Needs It , Sanford Levinson
Agreements With Hell And Other Objects Of Our Faith , J. M. Balkin
Agreements With Hell And Other Objects Of Our Faith , J. M. Balkin
Fordham Law Review
No abstract provided.