Legal History Commons^™

J. Skelly Wright And The Limits Of Liberalism, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

This essay, written for a symposium on the life and work of United States Court of Appeals Judge J. Skelly Wright, makes four points. First, Judge Wright was an important participant in the liberal legal tradition. The tradition sought to liberate law from arid formalism and to use it as a technique for progressive reform. However, legal liberals also believed that there were limits on what judges could do–-limits rooted in both its liberalism and its legalism. Second, Wright occupied a position on the left fringe of the liberal legal tradition, and he therefore devoted much of his career to …

Originalism And The Unwritten Constitution, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

In his book, America’s Unwritten Constitution, Akhil Reed Amar contends that to properly engage the written Constitution, scholars and laymen alike must look to extratextual sources: among them America’s founding documents, institutional practices, and ethos, all of which constitute Amar’s “unwritten Constitution.” In this article, the author argues that contemporary originalist constitutional theory is consistent with reliance on extraconstitutional sources in certain circumstances. He establishes a framework for revaluating the use of extratextual sources. That framework categorizes extratextual sources and explains their relevance to constitutional interpretation (the meaning of the text) and constitutional construction (elaboration of constitutional doctrine and …

Constitutional Possibilities, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

What are our constitutional possibilities? The importance of this question is illustrated by the striking breadth of recent discussions, ranging from the interpretation of the United States Constitution as a guarantee of fundamental economic equality and proposals to restore the lost constitution to arguments for the virtual abandonment of structural provisions of the Constitution of 1789. Such proposals are conventionally understood as placing constitutional options on the table as real options for constitutional change. Normative constitutional theory asks the question whether these options are desirable--whether political actors (citizens, legislators, executives, or judges) should take action to bring about their plans …

Originalism And The Natural Born Citizen Clause, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The enigmatic phrase "natural born citizen" poses a series of problems for contemporary originalism. New originalists, like Justice Scalia, focus on the public meaning of the constitutional text, but the notion of a "natural born citizen" was likely a term of art, derived from the idea of a "natural born subject" in English law--a category that most likely did not extend to persons, like John McCain, who were born outside sovereign territory. But the constitution speaks of "citizens" and not "subjects," introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.

What was the original …

Constitutional Texting, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

"Constitutional Texting" introduces an account of constitutional meaning that draws on Paul Grice's distinction between "speaker's meaning" and "sentence meaning." The constitutional equivalent of speaker's meaning is "framer's meaning," the meaning that the author of the constitutional text intended to convey in light of the author's beliefs about the reader's beliefs about the author's intentions. The constitutional equivalent of sentence meaning is "clause meaning," the meaning that an ordinary reader would attribute to the text at the time of utterance without any beliefs about particular intentions on the part of the author. Clause meaning is possible because the words and …