Open Access. Powered by Scholars. Published by Universities.®
- Publication
- Publication Type
Articles 1 - 10 of 10
Full-Text Articles in Law
Wittgenstein's Poker: Contested Constitutionalism And The Limits Of Public Meaning Originalism, Ian C. Bartrum
Wittgenstein's Poker: Contested Constitutionalism And The Limits Of Public Meaning Originalism, Ian C. Bartrum
Scholarly Works
Constitutional originalism is much in the news as our new President fills the Supreme Court vacancy Antonin Scalia's death has created. "Public meaning" originalism is probably the most influential version of originalism in current theoretical circles. This essay argues that, while these "New Originalists" have thoughtfully escaped some of the debilitating criticisms leveled against their predecessors, the result is a profoundly impoverished interpretive methodology that has little to offer most modern constitutional controversies. In particular, the fact that our constitutional practices are contested-that is, we often do not seek semantic or legal agreement-makes particular linguistic indeterminacies highly problematic for approaches …
James Wilson In The State House Yard: Ratifying The Structures Of Popular Sovereignty, Ian C. Bartrum
James Wilson In The State House Yard: Ratifying The Structures Of Popular Sovereignty, Ian C. Bartrum
Scholarly Works
There is an excellent (and rapidly growing) literature examining the influence of James Wilson's Scottish philosophical education on his later political ideas. In this Article, Professor Ian Bartrum makes two contributions to that scholarship. First, he reexamines several of the most important Scottish moral sentimentalists with a particular focus on the specific ontological and epistemological accounts that influenced Wilson. Second, he dissolves the seeming contradictions in Wilson's political thought by showing that, while he understood that representative bodies were essential to legitimate government, he nonetheless distrusted these institutions because they work to obscure, or even subvert, their members' individual experience …
Two Dogmas Of Originalism, Ian C. Bartrum
Two Dogmas Of Originalism, Ian C. Bartrum
Scholarly Works
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 the 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 …
Originalist Ideology And The Rule Of Law, Ian C. Bartrum
Originalist Ideology And The Rule Of Law, Ian C. Bartrum
Scholarly Works
This essay contends that one of the basic tenets of the "New Originalism" -- the so-called "contribution thesis" -- compromises our underlying commitment to the rule of law. By locating some binding substantive content of constitutional language in a historical record beyond the text itself, originalism undermines the fundamental concepts of formal legality and public accessibility. With these issues in mind, the essay concludes that originalism is not a philosophical account of how the Constitution has meaning in our legal system, but is instead a judicial ideology intended to promote the constitutional policy judgments of an earlier generation.
Ugly American Hermeneutics, Francis J. Mootz Iii
Ugly American Hermeneutics, Francis J. Mootz Iii
Nevada Law Journal
This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the "ugly American" hermeneutics exemplified in Justice Scalia's opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia's hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud.
Exposing The Contradiction: An Originalist's Approach To Understanding Why Substantive Due Process Is A Constitutional Misinterpretation, Jason A. Crook
Exposing The Contradiction: An Originalist's Approach To Understanding Why Substantive Due Process Is A Constitutional Misinterpretation, Jason A. Crook
Nevada Law Journal
Few phrases in American jurisprudence have created more of a stir or inspired greater controversy than the seventeen words that comprise the due process clause of the Fourteenth Amendment. Drafted by the Reconstruction Congress in the aftermath of the Civil War, these words have been used to strike down maximum-hours legislation, permit the instruction of foreign languages in schools, and even establish the right of minors to purchase contraceptives. In light of its linguistic incongruity and the versatility of its judicial precedents, one could fairly state that the meaning of the Fourteenth Amendment's due process clause has been the subject …
Ugly American Hermeneutics, Francis J. Mootz Iii
Ugly American Hermeneutics, Francis J. Mootz Iii
Scholarly Works
This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the "ugly American" hermeneutics exemplified in Justice Scalia's opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia's hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud.
Interpretation, Francis J. Mootz Iii
Interpretation, Francis J. Mootz Iii
Scholarly Works
In this chapter from "Law and the Humanities: An Introduction," published by Cambridge University Press, I first survey various theoretical approaches to interpretation, including natural law, analytical legal positivism, law as communication (originalism, intentionalism, and new textualism), and the hermeneutical turn. I then discuss the role of interpretation in contract law, statutory law and constitutional law, to situate the theories in practice.
Originalism And Indeterminacy, Thomas B. Mcaffee
Originalism And Indeterminacy, Thomas B. Mcaffee
Scholarly Works
Perhaps the most universal objection to originalism is that it is impossible; that is, the materials relied upon by originalists simply do not yield determinant answers to any worthwhile questions. This indeterminacy objection lacks significant force for at least three reasons. First, the claim that the interpretive materials are always indeterminate vastly overstates the extent and importance of the uncertainties involved; consequently, originalism's critics understate the importance of the originalist canon as a tool for reducing the degree of indeterminacy in constitutional interpretation. Once it becomes clear that originalist methodology can provide some definitive answers, even if significant indeterminacy remains, …
Reed Dickerson’S Originalism — What It Contributes To Contemporary Constitutional Debate, Thomas B. Mcaffee
Reed Dickerson’S Originalism — What It Contributes To Contemporary Constitutional Debate, Thomas B. Mcaffee
Scholarly Works
In this article the author offers his personal gratitude for the work of Reed Dickerson, along with some thoughts on his important contributions to our understanding of the interpretive process. As a young scholar in need of help in grappling with the continuing debate over constitutional interpretation, the author turned, at the suggestion of colleagues, to Reed Dickerson’s impressive book on statutory interpretation. The hours spent attempting to ingest Reed’s thoughtful work were amply rewarded, and the author took the occasion of publishing an article on the original intent debate to refer in an initial footnote to his intellectual debt …