Law Commons^™

An Originalist Theory Of Precedent: The Epistemic And Metaphysical Attitudes Toward Originalist Precedent, Lee Strang

Lee J Strang

No abstract provided.

The Text Through Time, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

No abstract provided.

Toward A More Democratic Congress?, James E. Fleming

Faculty Scholarship

There is considerable talk of failure in the air these days - including constitutional failure, moral failure, political failure and institutional failure - and criticisms of Congress figure prominently in this discourse. First, I shall ask whether talk about Congress being "the broken branch," the topic of the first panel in this symposium, is talk of constitutional failure or failure of some other sort. Second, to link the topic of that panel to the topic of the panel in which I participated, I will ask whether some call Congress the broken branch because it is not adequately or appropriately democratic. …

Constitutional Interpretation And Judicial Review: A Case Of The Tail Wagging The Dog, Michael Halley

Michigan Law Review First Impressions

A response to John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003 (2009). Professor John Manning's analysis of the Supreme Court's recent federalism decisions works as a platform to further the cause of textualism. His argument fails to persuade, however, because the textualism he says the Court should embrace in federalism cases is antithetical to the atextual nature of the Court's jurisdiction to adjudicate the constitutionality of legislation. Manning prefaces his work by telling readers that his analysis is not an end in itself. His aim, rather, is to "use the methodology" the …

Originalism As Jujitsu, Kurt T. Lash

Law Faculty Publications

The Ninth Amendment presents an irresistible mystery. It speaks of "other rights" retained by the people and it prohibits interpretations which "deny or disparage" those rights. The Amendment, however, tells us nothing about what these rights are or how they can be enforced. On the one hand, this makes the Ninth rather difficult to apply. On the other hand, the lack of definitional clarity also makes the Ninth Amendment something of a desideratum for those seeking expanded judicial protection of previously unrecognized individual rights. Accordingly, the Ninth Amendment has been cited in support of everything from Dial-a-Porn to freedom from …

Living Originalism, Peter J. Smith, Thomas Colby

GW Law Faculty Publications & Other Works

Originalists routinely argue that originalism is the only coherent and legitimate theory of constitutional interpretation. This Article endeavors to undermine those claims by demonstrating that, despite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label. Originalists generally agree only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the “writtenness” of the Constitution necessitates a fixed constitutional meaning, and that courts that see …

The Use And Abuse Of Foreign Law In Constitutional Interpretation, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

This article provides an exhaustive typology of the uses of foreign law in order to provide insight into whether foreign law can be appropriately used in constitutional interpretation, when it can be used, and what the stakes and parameters are in each case. In doing so, the article addresses two significant problems in the debate on foreign law. First, much of the commentary has focused on the justifications for using foreign law and the principled or practical arguments against using foreign law. But the focus on the why of foreign law has obscured the more basic question about the ways …

Limits Of Interpretivism, Richard A. Primus

Articles

Justice Stephen Markman sits on the Supreme Court of my home state of Michigan. In that capacity, he says, he is involved in a struggle between two kinds of judging. On one side are judges like him. They follow the rules. On the other side are unconstrained judges who decide cases on the basis of what they think the law ought to be. This picture is relatively simple, and Justice Markman apparently approves of its simplicity. But matters may in fact be a good deal more complex.

Against Textualism, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Modern textualists have assumed that careful attention to constitutional text is the key to the recovery of the Constitution's original public meaning. This article challenges that assumption by showing the importance of nontextual factors in early constitutional interpretation. The Founding generation consistently relied on structural concerns, policy, ratifiers' and drafters' intent, and broad principles of government. To exclude such nontextual factors from constitutional interpretation is to depart from original public meaning because the Founders gave these factors great weight in ascertaining meaning. Moreover, for a modern judge seeking to apply original public meaning, the threshold question is not simply; "How …

District Of Columbia V. Heller And Originalism, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

On June 26, 2008, the United States Supreme Court handed down its 5-4 decision in District of Columbia v. Heller, striking a District of Columbia statute that prohibits the possession of useable handguns in the home on the ground that it violated the Second Amendment to the United States Constitution. Justice Scalia's majority opinion drew dissents from Justice Stevens and Justice Breyer. Collectively, the opinions in Heller represent the most important and extensive debate on the role of original meaning in constitutional interpretation among the members of the contemporary Supreme Court.

This article investigates the relationship between originalist constitutional …

Constitutional Theory And The Future Of The Unitary Executive, Sotirios Barber, James E. Fleming

Faculty Scholarship

In The Constitution in Wartime: Beyond Alarmism and Complacency, Mark Tushnet distinguishes two voices: "alarmists who see in every action taken by the Bush [A]dministration a portent of gross restrictions on the civil liberties of all Americans, and administration shills who see in those actions entirely reasonable, perhaps even too moderate, accommodations of civil liberties to the new realities of national security."1 Tushnet's volume contains essays, including one by us,2 which he judges to lie "beyond alarmism and complacency" (or perhaps between alarmism and complacency). But critics of the Bush Administration's theory of the unitary executive may be alarmed by …

Judicial Activism And Fourteenth Amendment Privacy Claims: The Allure Of Originalism And The Unappreciated Promise Of Constrained Nonoriginalism, Daniel O. Conkle

Articles by Maurer Faculty

Among other meanings, "judicial activism" can be defined as judicial decisionmaking that frustrates majoritarian self-government and that is unconstrained by law. So understood, judicial activism is presumptively problematic, because it frustrates customary democratic and judicial norms.

In this essay, I address originalist and nonoriginalist responses to the presumptive problem of judicial activism in the context of Fourteenth Amendment privacy claims, including claims relating to abortion, sexual conduct, and same-sex marriage. I argue that originalism is an overrated solution, largely because current understandings of originalism, despite claims to the contrary, do not provide standards of decision that are sufficiently clear to …

On The Origins Of Originalism, Jamal Greene

Faculty Scholarship

For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. Ifocus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common law adjudicative norm, but whose political and legal cultures less readily assimilate judicial restraint to constitutional historicism. I offer …

The Place Of History And Philosophy In The Moral Reading Of The American Constitution, James E. Fleming

Faculty Scholarship

Dworkin argues that commitment to interpretive fidelity requires that we recognize that the Constitution embodies abstract moral principles rather than laying down a particular historical conception, and that interpreting those principles requires fresh judgments of political theory about how they are best understood. This interpretive strategy — Dworkin's ‘moral reading’ of the Constitution — stands in opposition to the narrow originalists' claim that interpretive fidelity requires following the rules laid down by the framers of the Constitution. Some theorists have responded to the originalists by attempting to carve out an intermediate theory between narrow originalism and the moral reading. Dworkin …