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The Fixation Thesis: The Role Of Historical Fact In Original Meaning, Lawrence B. Solum

Lawrence B. Solum

The central debate in contemporary constitutional theory is the clash between originalists and living constitutionalists. Originalism is the view that the original meaning of the constitutional text should constrain or bind constitutional practice—paradigmatically, the decision of constitutional cases by the United States Supreme Court. Living constitutionalists contend that the content of constitutional law should evolve over time in response to changing values and circumstances. One of the central questions in this debate is over the question whether the meaning of the constitutional text is fixed or changeable. This essay makes the case for the Fixation Thesis—the claim that the linguistic …

Originalism In Puerto Rico: Original Explication And Its Relation With Clear Text, Broad Purpose And Progressive Policy, Jorge Farinacci-Fernós

Jorge Farinacci-Fernós

Originalism is neither inherently conservative nor exclusive to the United States. Puerto Rico, a self-governing U.S. jurisdiction, has been using a particular form of originalism as its main methodological tool for constitutional interpretation and adjudication since 1952. Puerto Rican originalism has several key traits. First, it's politically progressive, due to the framers' explicit progressive agenda which is palpable from the historical sources. Second, their intent is empirically verifiable, due to the formality and transparency of constitutional creation that generated a formal and elaborate record. Third, the constitutional record is considered the authoritative source of constitutional meaning. Fourth, the textual characteristics …

With All Deliberate Speed: Nlrb V. Canning And The Case For Originalism, Adam Lamparello

Adam Lamparello

Record numbers of Americans are renouncing their citizenship. California’s citizens have amassed enough signatures to place on the 2016 ballot a proposal to divide California into six separate states. At least 34 states recently called for a second constitutional convention. Several states have ignored or enacted laws defying Supreme Court precedent. One has threatened to secede. Former Supreme Court Justice John Paul Stevens has responded to this crisis by calling for the addition of six constitutional amendments, several of which expand federal authority. That, in a nutshell, is the problem. This Article argues that, to remedy the imbalance in power …

With All Deliberate Speed: Nlrb V. Canning And The Case For Originalism, Adam Lamparello

Adam Lamparello

No abstract provided.

It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on …

It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on …

Justice Sotomayor's Undemocratic Dissent In Schuette V. Coalition To Defend Affirmative Action, Adam Lamparello

Adam Lamparello

There are compelling reasons to support affirmative action programs. The effects of racial discrimination, and racism itself, remain prevalent throughout the country. Pretending otherwise would be to ignore reality. Arguing that the equal protection clause compels a state to implement race-based affirmative action programs, however, would make a mockery of the Constitution. Former Supreme Court Justice Hughes famously stated, “at the constitutional level where we work, 90 percent of any decision is emotional.” The remaining 10 percent is “[t]he rational part … [that] supplies the reasons for supporting our predilections.” It is time for this type of judging to end. …

Two Dogmas Of Originalism, Ian C. Bartrum

Ian C Bartrum

In the early 1950s, Willlard Quine’s Two Dogmas of Empiricism offered a devastating critique of logical positivism and the effort to distinguish “science” from “metaphysics”. Quine demonstrated that positivists relied on dogmatic oversimplifications of both the world and human practices, and, in the end, suggested that our holistic natural experience cannot be reduced to purely logical explanations. In this piece, I argue that constitutional originalism—which, too, seeks to define a constitutional “science”—relies on similar dogmatisms. In particular, I contend that the “fixation thesis,” which claims that the constitutional judge’s first task is to fix the text’s semantic meaning at a …

Restoring Constitutional Equilibrium, Adam Lamparello

Adam Lamparello

In areas such as the Fourteenth Amendment, the Supreme Court's lack of institutional restraint has affected citizens of every political persuasion. In Bush v. Gore, the Florida Supreme Court’s recount order was blocked. ‘Liberals,’ lost. In Roe v. Wade, the Court required state legislatures to allow most abortions in the first trimester. ‘Conservatives’ lost. In Clinton v. City of New York and Citizens United v. Federal Election Commission, the coordinate branch’s attempt to ensure a more efficient and fairer government was thwarted. Average citizens lost. The problem is not a liberal or conservative one, whatever those words mean. It is …

The Separate But Unequal Constitution, Adam Lamparello, Charles E. Maclean

Adam Lamparello

The Constitution should not be a political chess match, and outcomes should not depend on the composition of the Supreme Court. The text’s written and unwritten mandates speak to a single value that should unite jurists of all interpretive persuasions: the people — not legislatures or courts — own the Constitution’s enumerated rights, and have a corresponding right to define those that are not enumerated. But those rights have not been fully realized because the Constitution has been applied in a separate — and unequal — manner.

The wealthy have increased access to the political process, the poor are disproportionately …

The First Amendment Structure For Speakers And Speech, Charles W. Rhodes

Charles W Rhodes

A noticeable trend in the Roberts Court’s free speech decisions is heightened attention to the dimensions of the First Amendment. From holding false factual statements, violent video games, and depictions of animal cruelty are covered by the First Amendment, to determining that a legislator’s vote, governmental acceptance of a monument, and a law school’s refusal to allow access to military recruiters are not, the Court has highlighted the importance of evaluating both the scope of the First Amendment and the appropriate attribution of communicative efforts. But the Court has failed to announce an overarching structural framework for resolving these prefatory …

Originalism And The Necessary And Proper Clause, John T. Valauri

John T. Valauri

This article analyzes a largely unacknowledged and, therefore, unsolved problem in constitutional theory and doctrine—the problem of multiplicity of meanings (i.e., encountering multiple conflicting meanings in practice when your doctrine or theory postulates just one). It does this by examining and comparing the debate over the meaning of the Necessary and Proper Clause in constitutional doctrine and the New Originalism’s notion of original public meaning in constitutional theory in order to help us get beyond the false and misleading assumptions underlying and motivating the myth of unitary meaning. It contrasts the role of the public and the express (as in …

2nd Amendment: The Right To Keep & Bear Arms -- Teaching D.C. V. Heller, Corey A. Ciocchetti

Corey A Ciocchetti

The D.C. v. Heller case is an incredible vehicle to teach about the United States Constitution. The case revolves around the Second Amendment right to keep and bear arms and shines a spotlight on Originalism as a theory of Constitutional interpretation. These slides show how the case evolved from the District Court to the Supreme Court. They also teach the facts of the case and the different opinions on both sides of the debate. In the end, readers will learn a great deal about the Second Amendment and its application to federal and state/local gun control laws as well as …

Equal Protection And Textualism: Incompatible Or No?, Michael T. Worley

Michael T Worley

This paper states that the degree to which the text and original intent of the framers of the constitution was to protect a class should determine the level of scrutiny that class should receive. The level of scrutiny a class should receive ought to be a function of how often or how broadly the class is protected in the constitution, as understood by the text of the Constitution, its Amendments, and their framers’ intent.

Support for this theory is found in particular in the experience regarding two classes. Age and race discrimination had been embedded in the constitution at the …

Getting Clear On The Originalism Debate: Is Originalism A Theory Of Constitutional Interpretation Or A Normative Rule Of Law?, Judy Hensley

Judy Hensley

The accompanying Article argues that proponents of Constitutional originalism have conflated conceptually distinct terms "meaning," "understanding" and intent, and that this blurring has permitted originalist theory to ignore a tension in its dual justifications rooted in democratic theory, on the one hand, and rooted in a standard semantic theory of intentionalism, on the other by showing that the demands of originalism’s underlying legal theoretical justification conflict with the those of its underlying semantic theoretical justifications. The conflict arises because the normatively significant agent in democratic theory is the Constitutional ratifiers whereas in the standard intentionalist semantic theory it is the …

The Practical Meaning Of Originalism, Frank B. Cross

Frank B Cross

Originalism may be the most commonly accepted practice of constitutional interpretation, and it is certainly the most widely discussed. However, most of the analysis of the method is at a purely theoretical level and largely ignores practice at the Supreme Court. In this article, I consider six major sources of originalist evidence and how they have been used by justices on the Court. The recent era has seen a flourishing reliance on originalism, though it is not so conservatively oriented as often assumed. The research also shows that originalism appears to have no effect on how the justices vote. Their …

Оригиналистская Доктрина В Конституционном Праве Сша, Leonid G. Berlyavskiy

Leonid G. Berlyavskiy

Studying of concepts of the constitutional interpretation in the USA allows to get more deeply into essence of the Constitutional System of the State, to understand the reasons and sources of its evolutionary development. The originalism represents a wide spectrum of the concepts aimed at explanation of original understanding, value of the Constitution of the USA or intentions of its «founding fathers». The theoretical base of the originalism is the Legal Positivism embodied in XX century into the Normativism. The originalists are united in the American Constitution Society. Among the originalists two sects are allocated: textualists and intentionalists

Why The Demands Of Formalism Will Prevent New Originalism From Furthering Conservative Political Goals, Daniel James Hornal

Daniel Hornal

Proponents of New Originalism propose that their modifications solve the indeterminacy and predictability problems inherent in early conceptions of originalism. This paper argues that excluding extrinsic evidence and relying only on the formal implications of the text merely switches one indeterminacy and predictability problem for another. Rules inherently carry implications unknown to rule writers. In the case of open-textured rules such as those in the Constitution, a broad reading can occupy whole fields of law, whereas a narrow reading can have almost no real-world effects. Because they must ignore extrinsic evidence, new originalists are almost unbound in their choice of …

The Myth Of Church-State Separation, David E. Steinberg

David E. Steinberg

The Myth Of Church-State Separation

by David E. Steinberg

Abstract

This article asserts that the church-state separation interpretation of Establishment Clause history is simply wrong. When they enacted the First Amendment, the framers were focused on the first five words of the amendment, which read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The Establishment Clause guaranteed that the federal government would not interfere in state regulation of religion – whatever form that state regulation took. Rather than enacting the Establishment Clause to mandate a separation of church …

Originalism As An Anchor For The Sixth Amendment, Jeffrey L. Fisher

Jeffrey L Fisher

Originalism is sometimes criticized as merely a means to justify conservative results. And cases do indeed exist in which the Supreme Court has divided along liberal-conservative lines, and conservatives have played originalism as a purported trump card. Last Term’s decision in District of Columbia v. Heller, interpreting the Second Amendment as including an individual right to bear arms, is a recent example.

When it comes to criminal procedure, however, things are not so simple. This Essay examines two lines of cases: first, those involving the Court's reinvigoration of the Sixth Amendment right to jury trial, and second, those involving the …

Why The Demands Of Formalism Will Prevent New Originalism From Furthering Conservative Political Goals, Daniel Hornal

Daniel Hornal

Proponents of New Originalism propose that their modifications solve the indeterminacy and predictability problems inherent in early conceptions of originalism. This paper argues that excluding extrinsic evidence and relying only on the formal implications of the text merely switches one indeterminacy and predictability problem for another. Rules inherently carry implications unknown to rule writers. In the case of open-textured rules such as those in the Constitution, a broad reading can occupy whole fields of law, whereas a narrow reading can have almost no real-world effects. Because they must ignore extrinsic evidence, new originalists are almost unbound in their choice of …

Common Law Constitutional Interpretation: A Critique, Brannon P. Denning

Brannon P. Denning

This is a review of David Strauss, The Living Constitution (2010). In it, I critique his claim that common law constitutional interpretation is a superior alternative to originalism.

The Fiduciary Theory Of Governmental Legitimacy And The Natural Charter Of The Judiciary, Luke A. Wake

Luke A. Wake

In legal academia, there are various claims as to the proper role of the courts and the standard of review to be employed in evaluating claims of right. These competing judicial philosophies have been the subject of great debate in recent years. Yet underlying these debates is the question of rights and whether men are entitled, in justice, to assurances of personal autonomy, or whether the concept of rights is a mere legal fiction.

In a recent article in the Journal of Law and Philosophy, Evan Fox-Decent argues that individuals are entitled, at a minimum, to certain guarantees of bodily …

The Rhetoric Of Originalism, David Finkelstein

David Finkelstein

Justice Stevens has recently observed that originalism "holds out objectivity and restraint as its cardinal and, it seems, only virtues." McDonald v. City of Chicago, Ill., 130 S.Ct. 3020, 3118 (2010) (Stevens, J., dissenting). This article critically examines the notion that non-originalist methods of interpretation invite subjectivity into the process and are therefore insufficient to constrain. I suggest that the originalist's dissatisfaction with ordinary methods of interpretation rests of bad philosophy of language, and that properly thought through, Wittgenstein's rule-following considerations point to a better way of thinking about meaning in general, and legal interpretation in particular.

I Swear: The History And Implications Of The Fourth Amendment’S “Oath Or Affirmation” Requirement, David S. Muraskin

David S Muraskin

This article seeks to reinvigorate the Fourth Amendment’s “Oath or affirmation” requirement. Fourth Amendment scholarship and jurisprudence typically dismiss the requirement as a mere procedural formality. However, reviewing pre-Revolution law and commentaries, early legal developments in the States, and the American justice manuals—treatises published by legal scholars to inform and influence judges and practitioners within the new nation—this article argues that the oath requirement is key to understanding and effectuating the Amendment’s purpose. The article demonstrates that the Amendment was partly motivated by a fear of how the Crown used its search and seizure power, as a primary investigatory tool …

Fighting The Culture War As A Neutral Observer: A Profile Of Justice Scalia’S Machinations In Lawrence V. Texas, George D. Miller

George D Miller

The purpose of this comment is to identify and determine the function of those machinations in the culture war as well as to demonstrate their patent shortcomings. In Part I, it will examine how Justice Scalia plays the “lifestyle card,” a subtle but powerful sign of his allegiance to the far right social and political agenda. Because of the controversy of this charge, much evidence will be adduced to demonstrate that the contemporary use of the word “lifestyle” reinforces a negative connotation of a promiscuous lifestyle often associated with the myth of hyper-sexuality, suggesting gay people “recruit” vulnerable heterosexuals and …

Charters, Compacts And Tea Parties: The Decline And Resurrection Of A Delegation View Of The Constitution, Edward A. Fallone

Edward A Fallone

This article seeks to address a gap in constitutional law scholarship: the absence of a systematic examination of the manner in which the contractual nature of the Constitution illuminates the original understanding of the text. By closely examining the historical evidence, I argue that the interpretation of the Constitution has been influenced by dueling conceptions of contractual origin. One view treats the Constitution as a charter that delegates limited and defined authority to the federal government. The second view treats the Constitution as a compact the terms of which reflect a bargain between the federal government and a discrete body …

The Right To Arms In The Living Constitution, David B. Kopel

David B Kopel

This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.

"Living constitutionalism" should be distinguished from "dead constitutionalism." Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect …

The Original Understandings Of The Capture Clause, Aaron D. Simowitz

Aaron D. Simowitz

The Congress shall have power to . . . To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. US Const Art I, § 8, cl 11.

Although the Capture Clause may seem obscure today, the power it embodies was crucially important to the early republic. General Washington declared, even during the Revolutionary War, that a centralized and standardized system for the handling of prizes was vital to the war effort. The first court established by the fledging federal government was the federal appellate court of prize. This court heard over a …

Taking History Seriously: Textulism,Originalim, And The Ninh Amndment, Thomas B. Mcaffee

Thomas B. McAffee

Dean William Trenor critques constitutional txtualism,contending that it pays too much attention to the words,gramma, and placement of clauses in the Constitution, and too litte to the history leding to the adoption of the interpreted language. An illusration is Amar's treatment of the Ninth Amendment in his book on the Bill of Rights. This treatment agrees that history sheds light on meaning,butcontends that the Ninth Amendent was drafted to secure right retained by granting limied power. The modern debate, moreover, is over how to intepret a postvist Constitution.