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Full-Text Articles in Law
In Search Of A Substantive Republic, James E. Fleming, Linda C. Mcclain
In Search Of A Substantive Republic, James E. Fleming, Linda C. Mcclain
Faculty Scholarship
The publication of Michael J. Sandel's Democracy's Discontent: America in Search of a Public Philosophy is a long-awaited and important event in political and constitutional theory. In 1982, through his first book, Liberalism and the Limits of Justice,1 Sandel emerged as a leading communitarian or civic republican critic of liberalism. That book became prominent, not because its criticisms of liberalism were dispositive, but because it eloquently and elegantly captured discontent with liberalism and evoked yearnings for an alternative. Since then, Sandel has occupied a position on the American intellectual landscape as a placeholder for a *510 communitarian or civic …
On Reading Recipes -- And Constitutions, Gary S. Lawson
On Reading Recipes -- And Constitutions, Gary S. Lawson
Faculty Scholarship
Modem theories of constitutional interpretation typically make the truth of propositions about constitutional meaning depend, at least to some degree, on the extent to which those propositions (1) lead to politically legitimate results' and/or (2) cohere with modem constitutional practice.2 That is, such theories generally maintain that correct interpretations of the Constitution must provide normative grounds to apply those interpretations in real cases, must be consistent with at least a substantial amount of real-world constitutional decisionmaking, or both.
Fidelity To Our Imperfect Constitution, James E. Fleming
Fidelity To Our Imperfect Constitution, James E. Fleming
Faculty Scholarship
What is the question of fidelity a question about? The topic of our Symposium, "Fidelity in Constitutional Theory," raises two fundamental questions: Fidelity to what? and What is fidelity? The short answer to the first-fidelity to the Constitution-poses a further question: What is the Constitution? For example, does the Fourteenth Amendment embody abstract moral principles or enact relatively concrete historical rules? And does the Constitution presuppose a political theory of majoritarian democracy or one of constitutional democracy? The short answer to the second-being faithful to the Constitution in interpreting it-leads to another question: How should the Constitution be interpreted?' Does …
Conservatives, Liberals, Romantics: The Persistent Quest For Certainty In Constitutional Interpretation, Frederick Mark Gedicks
Conservatives, Liberals, Romantics: The Persistent Quest For Certainty In Constitutional Interpretation, Frederick Mark Gedicks
Faculty Scholarship
Despite their considerable ideological differences, "conservative originalists" such as Robert Bork and "progressive originalists" such as Michael Perry both divide the process of understanding into cognitive (or "objective") and normative (or "subjective") aspects. The determination of the original meaning of the Constitution is methodologically separated from the question how this predetermined meaning should be applied in a particular case. This places both conservative and progressive originalists squarely in the tradition of Romantic hermeneutics, which sought to overcome the uncertainty and imprecision of textual interpretation by developing a "science of interpretation" which purported to be as epistemologically reliable as the methods …
Interstate Dialogue In State Constitutional Law, Patrick L. Baude
Interstate Dialogue In State Constitutional Law, Patrick L. Baude
Articles by Maurer Faculty
No abstract provided.
Was Slavery Unconstitutional Before The Thirteenth Amendment? Lysander Spooner’S Theory Of Interpretation, Randy E. Barnett
Was Slavery Unconstitutional Before The Thirteenth Amendment? Lysander Spooner’S Theory Of Interpretation, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
In 1843, radical abolitionist William Lloyd Garrison called the Constitution of the United States, "a covenant with death and an agreement with hell." Why? Because it sanctioned slavery, one of the greatest crimes that one person can commit against another. Slavery was thought by abolitionists to be a violation of the natural rights of man so fundamental that, as Lincoln once remarked: "If slavery were not wrong, nothing is wrong." Yet the original U.S. Constitution was widely thought to have sanctioned this crime. Even today, many still believe that, until the ratification of the Thirteenth Amendment prohibiting involuntary servitude, slavery …