Constitutional Law Commons^™

Conservatives, Liberals, Romantics: The Persistent Quest For Certainty In Constitutional Interpretation, Frederick Mark Gedicks

Faculty Scholarship

Despite their considerable ideological differences, "conservative originalists" such as Robert Bork and "progressive originalists" such as Michael Perry both divide the process of understanding into cognitive (or "objective") and normative (or "subjective") aspects. The determination of the original meaning of the Constitution is methodologically separated from the question how this predetermined meaning should be applied in a particular case. This places both conservative and progressive originalists squarely in the tradition of Romantic hermeneutics, which sought to overcome the uncertainty and imprecision of textual interpretation by developing a "science of interpretation" which purported to be as epistemologically reliable as the methods …

Term Limits On Original Intent--An Essay On Legal Debate And Historical Understanding, Polly J. Price

Faculty Articles

This Essay is divided into five Parts. Part I sets the stage for the historical debate by evaluating the text of the Qualifications Clauses as well as the limited evidence of what the Framers and the ratifiers thought about these provisions. Part II shows that many states, immediately after the federal Constitution was ratified, behaved as though the Qualifications Clauses did not prevent them from adding qualifications for congressional office-holding. Part III compares this early evidence of state behavior with a debate in Congress after the Civil War concerning the meaning of the Qualifications Clauses. Part IV returns to the …

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, …

The Relevance Of The Framers’ Intent, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Ever since the revival of interest in originalism that occurred in the 1980s, critics have 'charged that for a variety of reasons it is impractical, if not impossible, to determine the Framers' intentions. In addition, they argue that we today should not be bound by the intentions of a few men who lived and died over two-hundred years ago. In sum, adherence to original intent is rejected as being impractical, unjust, or both.

In this article, the author argues that we cannot assess either the practicality or the justice of discerning original intent without first asking why it is we …

A Text Is Just A Text, Paul F. Campos

Publications

No abstract provided.

A Nonoriginalist Perspective On The Lessons Of History, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Social Engineers With Jds, Gerard V. Bradley

Journal Articles

Stephen B. Presser: Recapturing the Constitution: Race, Religion, and Abortion Reconsidered. (Washington, DC: Regnery Publishing, 1994. Pp. xiv, 398. $24.95.)

With Recapturing the Constitution Steven Presser has launched a heat-seeking missile. It is, he confesses without contrition, "politically incorrect," "the same sort of exercise Allan Bloom was attempting in Closing of the American Mind" (pp. 12, 11). Presser aims to diagnose what ails our constitutional law as Bloom did our universities and culture. Presser argues that constitutional law is very sick indeed, and that it threatens to kill our body politic.

Legal Indeterminacy: Its Cause And Cure, Gary S. Lawson

Faculty Scholarship

Legal indeterminacy--the extent to which any particular legal theory cannot provide knowable answers to concrete problems is one of the principal themes of modern jurisprudence. Indeterminacy plays an important role in debates concerning interpretation, the nature of legal obligation, and the character and possibilities of the rule of law. Indeterminacy looms particularly large in debates concerning originalism as a method of constitutional interpretation. Some scholars insist that originalism resolves too few problems to be of much use, while others argue that originalism's indeterminacy is often overstated.

Bork V. Burke, Thomas W. Merrill

Faculty Scholarship

I would like to make the case for a conservative alternative to originalism. Much of the discussion that has taken place over the last two days has proceeded on the assumption that there are two choices. One is Robert Bork's originalism, justified by various values near and dear to conservative hearts, such as the rule of law, continuity with the past, the principle of democratic accountability, and so forth. The other is to flee into the hands of the so-called nonoriginalists, and embrace, to quote Judge Easterbrook quoting Justice Brennan, the judge's "personal confrontation with the well-springs of our society." …

The Original Understanding Of The Takings Clause And The Political Process, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

The original understanding of the Takings Clause of the Fifth Amendment was clear on two points. The clause required compensation when the federal government physically took private property, but not when government regulations limited the ways in which property could be used. In 1922, however, the Supreme Court's decision in Pennsylvania Coal v. Mahon established a new takings regime. In an opinion by Justice Holmes, the Court held that compensation must be provided when government regulation "goes too far" in diminishing the value of private property. Since that decision, the Supreme Court has been unable to define clearly what kind …

The Case Of The Prisoners And The Origins Of Judicial Review, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

For over one hundred years, scholars have closely studied the handful of cases in which state courts, in the years before the Federal Constitutional Convention, confronted the question whether they had the power to declare laws invalid. Interest in these early cases began in the late nineteenth century as one aspect of the larger debate about the legitimacy of judicial review, a debate triggered by the increasing frequency with which the Supreme Court and state courts were invalidating economic and social legislation. The lawyers, political scientists, and historians who initially unearthed the case law from the 1770s and 1780s used …

A Heterodox Catechism, Paul Campos

Publications

No abstract provided.

Conservatism And The Rehnquist Court, David F. Forte

Law Faculty Articles and Essays

Now that the Supreme Court has been overwhelmingly staffed by appointees of Republican Presidents, we can ask: To what extent have they been faithful to the original version of the Constitution as articulated during its early years? How have they revivified the structural protections? How have they communicated an ethical sense of their own role in the structure? The answer, unfortunately, is that the record remains disappointing.

Three Mistakes About Interpretation, Paul Campos

Publications

No abstract provided.

Memoirs Of A General In The Inglorious Revolution, Lawrence G. Sagar

Michigan Law Review

A Review of Order and Law: Arguing the Reagan Revolution: A First-Hand Account by Charles Fried

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 …

Against Constitutional Theory, Paul Campos

Publications

No abstract provided.

The Bill Of Rights And Originalism, Gerard V. Bradley

Journal Articles

Professor Bradley begins the final installment of the University of Illinois Law Review's year-long tribute to the Bill of Rights by proposing that the first ten Amendments, like the Constitution itself, be interpreted according to the original understanding of their ratifiers. Professor Bradley, though, narrows the scope of the exegetical inquiry to what he proposes is the only sound originalism - plain meaning, historically recovered. Professor Bradley argues that interpreting the Bill of Rights according to the text's plain meaning among persons politically active at the time of drafting avoids both the inflexibility and philosophical deficiencies of "snapshot" conservative originalism …

Constitutional Theory Beyond Left And Right, Gerard V. Bradley

Journal Articles

Hadley Arkes: Beyond the Constitution. (Princeton: Princeton University Press, 1990. Pp. 288. $24.95.)

Hadley Arkes's latest book is Beyond the Constitution and it is virtually a tour de force. Author of The Philosopher in The City and First Things, in the new work Arkes persuasively criticizes both liberal and conservative constitutionalism as well as their common legal theoretical base, displaying all the while the philosophical astuteness and elegant prose his prior work has accustomed readers to expect. Anyone remotely interested in constitutional law should read this book.

Original Intent And Boris Bittker, Raoul Berger

Indiana Law Journal

No abstract provided.

The Tempting Of America, Gerard V. Bradley

Journal Articles

THE TEMPTING OF AMERICA by Robert Bork. New York: The Free Press/Macmillan, 1990. Hdbd: pp. xiv-432.

In the concluding third of The Tempting of America Robert Bork recounts his unsuccessful fight to gain Senate confirmation to the Supreme Court.

Bork relates his war story to the rest of the book. In the first two-thirds of Tempting, he takes us on a grand tour of the Constitution's career, starting in the courts with Chief Justice John Marshall, on through the Civil War, Reconstruction, and New Deal eras. He finishes with a detailed examination of the Warren, Burger and Rehnquist Courts. …

Probing Bork's Judicial Philosophy, Gerard V. Bradley

Journal Articles

Robert Bork: The Tempting of America. (New York: The Free Press, 1989. Pp. xiv, 432. $22.50.)

In the last third of The Tempting of America Robert Bork relives the painful ordeal of his lost nomination to the Supreme Court. Any sentient American then alive already knows that story: the campaign against him was full of half-truths, distortions, and just plain lies. Bork adds some confirming anecdotes, and I congratulate him for telling the tale candidly but without rancor. The loss is ours. In my opinion, Bork would have been among the two or three greatest justices of the last …

Review Of Red, White, And Blue: A Critical Analysis Of Constitutional Law By Mark Tushnet, David B. Lyons

Faculty Scholarship

Mark Tushnet's new book offers no such counsel. Mainly a critique of interpretative theories, its conclusions are profoundly skeptical. Tushnet's central claim is that judicial review and constitutional theory cannot possibly perform their assigned functions, and that liberalism is to blame. This review will focus on those facets of the book.

Taking The Framers Seriously, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

This article reviews Taking the Constitution Seriously by Walter Berns (1987).

This review focuses on three of the key historical points that Walter Berns makes: his arguments that the Declaration of Independence is a Lockean document; that the Constitution encapsulates the political philosophy of the Declaration; and that the framers viewed the commercialization of society as a salutary development and were unambivalent champions of the right to property. Examination of these issues suggests that the ideological universe of the framers was far more complex than Berns indicates. While the revolutionary era witnessed a new concern with individual rights and a …

Stare Decisis And Constitutional Adjudication, Henry Paul Monaghan

Faculty Scholarship

Despite endless literature urging that constitutional adjudication be severed from explorations into the understandings at the creation of the Constitution, original understanding continues to play a prominent role in the Supreme Court's jurisprudence. For the Court, originalism seemingly provides a legitimate ground for decisionmaking; for the people, it provides assurances against judicial usurpation of power properly belonging to other branches of government, or retained by the people themselves.

But difficulties with originalism emerge once the existing constitutional order is actually examined. The Supreme Court's repeated invocations of the Framers' understanding notwithstanding, a significant portion of our constitutional order cannot reasonably …

In Praise Of Woodenness, Gary S. Lawson

Faculty Scholarship

Not long ago, I was a stalwart champion of judicial terrorism on behalf of economic liberty. In recent years, however, I have become a meek, mildmannered originalist whose favorite adjective is "wooden."' I still like economic liberty as much as the next person - in fact, more than at least one of the next two persons. Nonetheless, much as I would like to, I cannot agree that the Constitution requires a free market to the extent urged by, among others, Roger Pilon, Bernard Siegan,3 Steven Macedo, 4 Randy Barnett,5 and Richard Epstein.6 My aim here is not to criticize their …

Rationalism In Constitutional Law, Robert F. Nagel

Publications

No abstract provided.