Law Commons^™

The Inclusiveness Of The New Originalism, James E. Fleming

Fordham Law Review

No abstract provided.

Editors’ Foreword, Editors

Fordham Law Review

No abstract provided.

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

Fordham Law Review

No abstract provided.

Meaning And Belief In Constitutional Interpretation, Andrei Marmor

Fordham Law Review

No abstract provided.

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

Fordham Law Review

No abstract provided.

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

Fordham Law Review

No abstract provided.

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

Fordham Law Review

No abstract provided.

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

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

Fordham Law Review

No abstract provided.

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

Fordham Law Review

No abstract provided.