Law Commons^™

Foreign Law As Legislative Fact In Constitutional Cases, A. Christopher Bryant

Faculty Articles and Other Publications

Do we really need another law review article about foreign law in constitutional interpretation? In fact, we do. In the vast literature on the subject, a fundamental point has received scant attention. In the recent rulings that have stoked the present controversy, the Supreme Court has employed foreign law not as law, but rather merely as evidence of a legislative fact made relevant by domestic constitutional law. Commentators, however, have largely directed their attention to the merits of a genuine constitutional comparativism in which foreign law serves as a model for the creation of domestic constitutional doctrine. Many commentators have …

Reflective Equilibrium And Constitutional Method: Lessons From John Mccain And The Natural-Born Citizen Clause, Mitchell N. Berman

All Faculty Scholarship

How should we settle on a theory of constitutional interpretation? Take the debate over originalism. How should we determine which of the contending views is correct? Presumably, the correct view of constitutional interpretation must be at least consistent with the truth about other adjacent matters too - like, say, the nature of law. But how should we go about reaching the correct theory of constitutional interpretation in a manner that best ensures this consistency condition is satisfied?

A common approach, especially favored by some subset of contemporary originalists, is fairly described as foundationalist. For example, some originalists argue: that the …

What If Slaughter-House Had Been Decided Differently?, Kermit Roosevelt Iii

All Faculty Scholarship

In The Slaugherhouse Cases, the Supreme Court gutted the Privileges or Immunities Clause of the Fourteenth Amendment. Though academics continue to argue that Slaughterhouse was wrongly decided and should be overruled, the practical consequences of doing so might not be enormous. The constitutional rights the dissenters found in the Privileges or Immunities Clause are part of our current law anyway, through the Due Process and Equal Protection Clauses. But this does not mean that Slaughterhouse cost us nothing. This article explores how our law might be different had Slaughterhouse been decided differently. Rather than taking up the role that Privileges …

Two Kinds Of Plain Meaning, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Is plain meaning so plain? This is not meant to be a philosophical question, but one deserving serious legal analysis. The plain-meaning rule claims to provide certainty and narrow statutes' domains. The author agrees with, as a relative claim, comparing plain meaning with purposivism. She does not agree that plain-meaning analysis is as easy as its proponents suggest. In this piece, the author teases out two very different ideas of plain meaning--ordinary/popular meaning and expansive/legalist meaning--suggesting that doctrinal analysis requires more than plain-meaning simpliciter. Perhaps more importantly, she argues that plain meaning, as legalist meaning, can quite …

Interpretation And Construction, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In recent years, it has become apparent that there is a difference between (a) discovering the semantic meaning of the words in the text of the Constitution, and (b) putting that meaning into effect by applying it in particular cases and controversies. To capture this difference, following the lead of political science professor Keith Whittington, legal scholars are increasingly distinguishing between the activities of “interpretation” and “construction.” Although the Supreme Court unavoidably engages in both activities, it is useful to keep these categories separate. For one thing, if originalism is a theory of interpretation, then it may be of limited …