Constitutional Originalism

W. Bennett Robert, B. Solum Lawrence

Description

Problems of constitutional interpretation have many faces, but much of the contemporary discussion has focused on what has come to be called "originalism." The core of originalism is the belief that fidelity to the original understanding of the Constitution should constrain contemporary judges. As originalist thinking has evolved, it has become clear that there is a family of originalist theories, some emphasizing the intent of the framers, while others focus on the original public meaning of the constitutional text. This idea has enjoyed a modern resurgence, in good part in reaction to the assumption of more sweeping power by the judiciary, operating in the name of constitutional interpretation. Those arguing for a "living Constitution" that keeps up with a changing world and changing values have resisted originalism. This difference in legal philosophy and jurisprudence has, since the 1970s, spilled over into party politics and the partisan wrangling over court appointments from appellate courts to the Supreme Court.In Constitutional Originalism, Robert W. Bennett and Lawrence B. Solum elucidate the two sides of this debate and mediate between them in order to separate differences that are real from those that are only apparent. In a thorough exploration of the range of contemporary views on originalism, the authors articulate and defend sharply contrasting positions. Solum brings learning from the philosophy of language to his argument in favor of originalism, and Bennett highlights interpretational problems in the dispute-resolution context, describing instances in which a living Constitution is a more feasible and productive position. The book explores those contrasting positions, to be sure, but also uncovers important points of agreement for the interpretational enterprise. This provocative and absorbing book ends with a bibliographic essay that points to landmark works in the field and helps lay readers and students orient themselves within the literature of the debate.

Sujets

• USA
• United States of America
• Legal history
• History of the Americas
• États-Unis
• Constitution

Informations

• Publié par: Cornell University Press
• Date de parution: 06 juin 2011
• Nombre de lectures: 0
• EAN13: 9780801460630
• Langue: English

Extrait

Constitutional Originalism

Constitutional Originalism

A Debate

Robert W. Bennett and Lawrence B. Solum

Cornell University Press Ithaca and London

Copyright © 2011 by Cornell University

All rights reserved. Except for brief quotations in a review, this book, or parts thereof, must not be reproduced in any form without permission in writing from the publisher. For information, address Cornell University Press, Sage House, 512 East State Street, Ithaca, New York 14850.

First published 2011 by Cornell University Press Printed in the United States of America

Library of Congress CataloginginPublication Data Bennett, Robert W. (Robert William), 1941–  Constitutional originalism : a debate / Robert W. Bennett and Lawrence B. Solum.  p. cm.  Includes bibliographical references and index.  ISBN 9780801447938 (cloth : alk. paper)  1. Constitutional law—United States. I. Solum, Lawrence B. II. Title.  KF4550.B377 2011  342.73—dc22 2011001824

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Preface

Contents

We Are All Originalists Now Lawrence B. Solum What Is Originalism? Should We Be Originalists? Originalism and Living Constitutionalism

Originalism and the Living American Constitution Robert W. Bennett Originalism and Living Constitutionalism Wrestling with the Troubles of Originalism Implications for Living Constitutionalism Living with a Living Constitution The Failure of Originalism as Restraint

Living with Originalism A Response by Lawrence B. Solum Can Original Meaning Constrain? The LevelsofGenerality Pseudoproblem

vii

1

1 36 64 78

78 84 120 138 141 143

143 148

v i C o n t e n t s

The Role of Values in Constitutional Construction Dead Hands Transitions and Precedent Original Intent Revisited Originalism and Politics

Are We All Living Constitutionalists Now? A Response by Robert W. Bennett The Interpretive Role of Nonoriginalism in Solum’s Scheme Extent of Liveliness in Solum’s Constitutional Law and Bennett’s Normative Choices in Interpretation Ordinary or Technical Meaning The Limits of Constraint Based on Language

Notes Suggested Readings Index

150 152 157 160 163 165

165 169 175 177 178

181 199 205

Preface

Debates about constitutional originalism and its rival, living constitu tionalism, are old. Originalists insist that the meaning of the United States Constitution is fixed. The words and phrases of the constitutional text have the same meaning today as they did when the Constitution was ratified by the requisite nine states in 1788 (or when each amendment was rati fied). Living constitutionalists believe that the meaning of the Constitution must adapt to changes in values and circumstances. The two authors of the essays that follow clearly have different attitudes toward what is called originalism in constitutional interpretation. Lawrence Solum advocates a form of constitutional originalism; Robert Bennett’s views align with a version of living constitutionalism. But the essays reveal that this contrast shrouds a host of complexities, both in the definitions of the concepts and in approaches to interpretation. Together the essays provide an introduc tion to the contemporary debates about the role of original understanding in constitutional interpretation.

v i i i P r e f a c e

Though the termoriginalismis of fairly recent origin, tensions between an originalist approach and living constitutionalism have been evident for a long time. For example, inHome Building & Loan Ass’n v. Blaisdell, Justice George Sutherland dissented on originalist grounds: “A provi sion of the Constitution, it is hardly necessary to say, does not admit of two distinctly opposite interpretations. It does not mean one thing at one 1 time and an entirely different thing at another time.” And Charles Evans Hughes, the chief justice, authored a majority opinion that echoes living constitutionalist themes: “If, by the statement that what the Constitution meant at the time of its adoption it means today, it is intended to say that the great clauses of the Constitution must be confined to the interpreta tion which the framers, with the conditions and outlook of their time, would have placed upon them, the statement carries its own refutation. It was to guard against such a narrow conception that Chief Justice Mar shall uttered the memorable warning—‘We must never forget that it is a 2 constitution we are expounding.’ ” Debates between originalists and living constitutionalists surface in or dinary judicial decisions but also in more structured debates among and between judges and commentators about judicial activism in constitutional decision making. There are many definitions of judicial activism, but a recurrent theme in much of the criticism of such activism is that activist judges are not really interpreting the Constitution. This was the launching pad for criticism of activism that Edwin Meese made in the 1980s when he was attorney general in the administration of Ronald Reagan. Meese did not use the wordoriginalism—it had only recently been invented by Paul Brest, then on the Stanford Law School faculty—but both the idea and some of its ambiguities are evident in Meese’s criticisms. And since Meese’s foray, debates about originalism in constitutional interpretation have been a regular feature of both American politics and American aca demic discussion. The dueling essays of this book build on this flourishing literature. The Reagan administration was, of course, identified with the con servative end of the contemporary American political spectrum. And in the years since Meese ignited (or reignited) debates about originalism and judicial activism, those who identify themselves as originalists have been predominantly conservative. As Solum’s essay suggests, however, there is nothing inherent either in originalism or in positions on judicial activism

P r e f a c ex i

that needs to be identified with positioning on the political spectrum. Both Bennett and Solum are convinced that this is so regardless of how one is aligned in the clash of their views on originalism. This counsels a more general point about the growing body of literature on interpretation in the law. The literature reflects many more than two positions. This exchange introduces the subject and explores a wide range of the salient issues. We hope that it prepares the serious student for explo ration more broadly, with both basic understanding of what is at stake and sophistication about many of the intriguing questions along the way.