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Full-Text Articles in Law
“To Assemble Together For Their Common Good”: History, Ethnography, And The Original Meanings Of The Rights Of Assembly And Speech, Saul Cornell
Fordham Law Review
The Whiskey Rebellion is not generally a major focus in constitutional histories or casebooks. Given this fact, it is hardly surprising that the 1795 case Respublica v. Montgomery seldom figures as more than a minor footnote in scholarly writing about early American constitutional development, if it receives any attention at all. The case has little precedential value for modern First Amendment doctrine and only obliquely implicates larger jurisprudential questions about the rights of assembly and freedom of expression. In strictly doctrinal terms, Montgomery is primarily about the obligation of a justice of the peace to put down a riot, not …
Historians And The New Originalism: Contextualism, Historicism, And Constitutional Meaning, Martin S. Flaherty
Historians And The New Originalism: Contextualism, Historicism, And Constitutional Meaning, Martin S. Flaherty
Fordham Law Review
Toward that end, this Foreword addresses three matters. First, it considers why the use of history in constitutional interpretation is inescapable. Next, it suggests that the Essays in this forum do not go far enough in debunking the idea of “public meaning” originalism as a serious alternative to previous approaches. Finally, the balance of this Foreword reviews the also perhaps inescapable misuses of history that constitutional interpretation invites and considers the type of misuse that public meaning originalism represents.
Historicism And Holism: Failures Of Originalist Translation, Jonathan Gienapp
Historicism And Holism: Failures Of Originalist Translation, Jonathan Gienapp
Fordham Law Review
For as long as the U.S. Constitution has existed, Americans have appealed to the history of its creation to interpret its meaning. But only since the advent of originalism—the well-known constitutional theory that requires interpreting the Constitution today in accordance with its original meaning—has historical study been so immediately implicated by constitutional interpretation. Despite potential, though, for meaningful exchange between originalists and historians, little has taken place. That originalism plays an ever-growing role in contemporary political culture only makes the lack of dialogue all the more unfortunate.
Outsourcing The Law: History And The Disciplinary Limits Of Constitutional Reasoning, Helen Irving
Outsourcing The Law: History And The Disciplinary Limits Of Constitutional Reasoning, Helen Irving
Fordham Law Review
Debates about the use of history in constitutional interpretation find their primary nourishment in the originalism debate. This has generated a vast amount of literature, but also narrowed the terms of the debate. Originalism is a normative commitment wrapped in a questionable methodological confidence. Regardless of the multiple forms originalism takes, originalists are confident that the meaning (in the sense of intention) that animated the framing of the Constitution can be ascertained and, indeed, that they can ascertain it. The debate has largely focused, then, on whether modern-day scholars and jurists can ascertain original historical meaning or, alternatively, whether they …
Tone Deaf To The Past: More Qualms About Public Meaning Originalism, Jack Rakove
Tone Deaf To The Past: More Qualms About Public Meaning Originalism, Jack Rakove
Fordham Law Review
With some apologies for a vast degree of oversimplification, let us stipulate that there are two main forms of originalism. One is known as “semantic” or “public meaning” originalism. Its leading advocates include Lawrence Solum, Keith Whittington, and Randy Barnett (professional friends, all). The leading premise of semantic originalism is that the meaning of the constitutional text—or, more specifically, of its individual clauses—was fixed at the moment of its adoption. Under this view, the goal of constitutional interpretation is to recover that original meaning, and the best way to do that pivots on reconstructing how an informed reader, whether a …
The Arduous Virtue Of Fidelity: Originalism, Scalia, Tribe, And Nerve, Ronald Dworkin
The Arduous Virtue Of Fidelity: Originalism, Scalia, Tribe, And Nerve, Ronald Dworkin
Fordham Law Review
Proper constitutional interpretation takes both text and past practice as its object: Lawyers and judges faced with a contemporary constitutional issue must try to construct a coherent, principled, and persuasive interpretation of the text of particular clauses, the structure of the Constitution as a whole, and our history under the Constitution—an interpretation that both unifies these distinct sources, so far as this is possible, and directs future adjudication. They must seek, that is, constitutional integrity. So fidelity to the Constitution's text does not exhaust constitutional interpretation, and on some occasions overall constitutional integrity might require a result that could …