Legal History Commons^™

An Analysis Of The Competing Views On The Interpretation Of The U.S. Constitution, Joseph Longo

Senior Honors Theses

This thesis will examine the competing interpretations of the United States Constitution and the different effects these interpretations would have on the American government and legal systems. By examining legal precedents and different philosophical views, the varying interpretations will be examined and put through real-world scenarios. The founding of America was over 200 years ago, but philosophical views throughout history shall be used in the understanding of the different interpretations and real-world consequences. The thesis will not claim that one interpretation is proper and the perfect one for the United States, rather it will challenge each view in an attempt …

Considerations Of History And Purpose In Constitutional Borrowing, Robert Tsai

Articles in Law Reviews & Other Academic Journals

This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white …

The Canon Wars, Anita S. Krishnakumar, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Canons are taking their turn down the academic runway in ways that no one would have foretold just a decade ago. Affection for canons of construction has taken center stage in recent Supreme Court cases and in constitutional theory. Harvard Dean John Manning and originalists Will Baude and Stephen Sachs have all suggested that principles of “ordinary interpretation” including canons should inform constitutional interpretation. Given this newfound enthusiasm for canons, and their convergence in both constitutional and statutory law, it is not surprising that we now have two competing book-length treatments of the canons—one by Justice Scalia and Bryan Garner, …

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

All Faculty Scholarship

Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative …

When Congress Is Away The President Shall Not Play: Justice Scalia's Concurrence In Nlrb V. Noel Canning, Krista M. Pikus

Michigan Law Review First Impressions

On June 26, 2014, the Supreme Court unanimously decided NLRB v. Noel Canning, holding that the Recess Appointments Clause authorizes the president “to fill any existing vacancy during any recess . . . of sufficient length.” Justice Scalia filed a concurring opinion, joined by Chief Justice Roberts, Justice Thomas, and Justice Alito. While Justice Scalia “concurred,” his opinion read more like a dissent. Both the majority and the concurring opinions relied heavily on historical evidence in arriving at their respective opinions. This was expected from Justice Scalia given his method of “new originalism,” which focuses on “the original public …

The Constitution And Legislative History, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

In this article, the author provides an extended analysis of the constitutional claims against legislative history, arguing that, under textualists’ own preference for constitutional text, the use of legislative history should be constitutional to the extent it is supported by Congress’s rulemaking power, a constitutionally enumerated power.

This article has five parts. In part I, the author explains the importance of this question, considering the vast range of cases to which this claim of unconstitutionality could possibly apply—after all, statutory interpretation cases are the vast bulk of the work of the federal courts. She also explains why these claims should …

Crushing Animals And Crashing Funerals: The Semiotics Of Free Expression, Harold Anthony Lloyd

Harold Anthony Lloyd

This article addresses judicial choices and semantic errors involved in United States v. Stevens, 130 S.Ct. 1577 (2010) (refusing to read “killing” and “wounding” to include cruelty and thus striking down a federal statute outlawing videos of animal cruelty), and Snyder v. Phelps, 131 S.Ct. 1207 (2011) (finding a First Amendment right to picket military funerals and to verbally attack parents of dead soldiers as part of purportedly-public expression). This article maintains that a better understanding of semiotics (the theory of signs) exposes the flaws in both decisions and bolsters the arguments of the lone dissenter in both cases, Justice …

Communicative Content And Legal Content, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay investigates a familiar set of questions about the relationship between legal texts (e.g., constitutions, statutes, opinions, orders, and contracts) and the content of the law (e.g., norms, rules, standards, doctrines, and mandates). Is the original meaning of the constitutional text binding on the Supreme Court when it develops doctrines of constitutional law? Should statutes be given their plain meaning or should judges devise statutory constructions that depart from the text to serve a purpose? What role should default rules play in the interpretation and construction of contracts? This essay makes two moves that can help lawyers and legal …

Originalism And Constitutional Construction, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

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: …

Constitution Day 2012: The American Judiciary, Robert Berry

Librarian Publications

Robert Berry, research librarian for the social sciences at the Sacred Heart University Library, has written an essay about the role of the American Judiciary in interpreting laws of the United States government. The essay was written for the occasion of Constitution Day 2012 at Sacred Heart University.

Failed Constitutional Metaphors: The Wall Of Separation And The Penumbra, Louis J. Sirico Jr.

University of Richmond Law Review

No abstract provided.

The Constitution As An Exploding Cigar And Other “Historian’S Heresies” About A Constitutional Orthodoxy, R.B. Bernstein

NYLS Law Review

No abstract provided.

Constructing The Constitutional Canon: The Metonymic Evolution Of Federalist 10, Ian C. Bartrum

Ian C Bartrum

This paper is part of larger symposium convened for the 2010 AALS annual meeting. In it I adapt some of my earlier constitutional theoretical work to engage the topic of that symposium: the so-called “interpretation/construction distinction”. I make two related criticisms of the distinction: (1) it relies on a flawed conception of linguistic meaning, and (2) while these flaws may be harmless in the “easy” cases of interpretation, they are much more problematic in the difficult cases of most concern. Thus, I doubt the ultimate utility of the distinction as part of a “true and correct” model of constitutional theory. …

The Constitution And The Public Trust, Robert G. Natelson

Robert G. Natelson

The American Founders believed that public officials were bound by fiduciary obligations, and they wrote that view into the Constitution. This article copiously documents their position.

When Is The New York Court Of Appeals Justified In Deviating From Federal Constitutional Interpretation?, Honorable Richard D. Simons

Touro Law Review

No abstract provided.

Institutions And Linguistic Conventions: The Pragmatism Of Lieber's Legal Hermeneutics, Guyora Binder

Journal Articles

This article presents Francis Lieber’s 1839 treatise “Legal and Political Hermeneutics” as a surprisingly modern and pragmatic account of interpretation. It first explicates the two most important influences on Liber’s thought, the romantic philology of Friedrich Schleiermacher, and the institutional positivism of Whig jurists Story and Kent. It shows that both of these sources frankly acknowledged that interpretation is an institutional practice, organized by the evolving aims and customs of the institutions within which it took place. Both tended to view the writing and reading of texts as the deployment of linguistic conventions. Both movements thereby viewed meaning for all …

The Constitution's Accommodation Of Social Change, Philip A. Hamburger

Michigan Law Review

Did the framers and ratifiers of the United States Constitution think that changes in American society would require changes in the text or interpretation of the Constitution? If those who created the Constitution understood or even anticipated the possibility of major social alterations, how did they expect constitutional law - text and interpretation - to accommodate such developments?

The effect of social change upon constitutional law was an issue the framers and ratifiers frequently discussed. For example, when AntiFederalists complained of the Constitution's failure to protect the jury trial in civil cases, Federalists responded that a change of circumstances might, …

Adjudication Is Not Interpretation: Some Reservations About The Law-As-Literature Movement, Robin West

Georgetown Law Faculty Publications and Other Works

Among other achievements, the modern law-as-literature movement has prompted increasing numbers of legal scholars to embrace the claim that adjudication is interpretation, and more specifically, that constitutional adjudication is interpretation of the Constitution. That adjudication is interpretation -- that an adjudicative act is an interpretive act -- more than any other central commitment, unifies the otherwise diverse strands of the legal and constitutional theory of the late twentieth century.

In this article, I will argue in this article against both modern forms of interpretivism. The analogue of law to literature, on which much of modern interpretivism is based, although fruitful, …

Mr. Justice William Johnson And The Common Incidents Of Life: I, A. J. Levin

Michigan Law Review

When Justice Oliver Wendell Holmes filed his brief dissenting opinion in Lochner v. New York in 1905 he must have noticed something new on the American horizon. In this now famous opinion he initiated the first steps which were to usher in a new era in American jurisprudence. "General propositions do not decide concrete cases," he announced with axiomatic brevity and, thus, gave the first telling blow to what may well be termed "introspective jurisprudence." This generalization on the subject of generality was followed in the opinion by a more concrete application, the implementing assertion that a reasonable man might …

Has The Constitution Gone?, John A. Fairlie

Michigan Law Review

As far back as 1828, Chief Justice Marshall is quoted as saying: "Should Jackson be elected, I shall look upon the government as virtually dissolved." A few years later, when Taney was appointed Chief Justice by Jackson, Daniel Webster wrote: "Judge Story thinks the Supreme Court is gone, and I think so too." Soon afterwards, when the newly constituted Court rendered decisions upholding statutes from which Story dissented, the latter wrote to Judge McLean: "There will not, I fear, ever in our day, be any case in which a law of a State or of Congress will be declared …