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[Introduction To] The Language Of Law And The Foundations Of American Constitutionalism, Gary L. Mcdowell

Bookshelf

For much of its history, the interpretation of the United States Constitution presupposed judges seeking the meaning of the text and the original intentions behind that text, a process that was deemed by Chief Justice John Marshall to be “the most sacred rule of interpretation.” Since the end of the nineteenth century, a radically new understanding has developed in which the moral intuition of the judges is allowed to supplant the Constitution’s original meaning as the foundation of interpretation. The Founders’ constitution of fixed and permanent meaning has been replaced by the idea of a “living” or evolving constitution. Gary …

Why Federalism And Constitutional Positivism Don't Mix, James A. Gardner

Contributions to Books

Published as Chapter 4 in New Frontiers of State Constitutional Law: Dual Enforcement of Norms, James A. Gardner & Jim Rossi, eds.

This chapter places the book's approach in its interpretational context by linking the federal structure of constitutional norm production to the ever-present problem of interpretational methodology. It begins by arguing that previous approaches to the interpretation of subnational constitutions have failed because they improperly attempted to apply the dominant jurisprudence of national constitutional interpretation—constitutional positivism—to the constitutions of the states. Yet constitutional positivism as a technique only makes sense where subnational units are autonomous, as independent nations are. …