Constitutional Originalism

by Bennett, Robert W.; Solum, Lawrence B.

• ISBN13: 9780801447938
• ISBN10: 0801447933
• Format: Hardcover
• Copyright: 2011-06-16
• Publisher: Cornell Univ Pr

Summary

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.

Table of Contents

Preface	p. vii
We Are All Originalists Now	p. 1
What Is Originalism?	p. 1
Should We Be Originalists?	p. 36
Originalism and Living Constitutionalism	p. 64
Originalism and the Living American Constitution	p. 78
Originalism and Living Constitutionalism	p. 78
Wrestling with the Troubles of Originalism	p. 84
Implications for Living Constitutionalism	p. 120
Living with a Living Constitution	p. 138
The Failure of Originalism as Restraint	p. 141
Living with Originalism: A Response by	p. 143
Can Original Meaning Constrain?	p. 143
The Levels-of-Generality Pseudoproblem	p. 148
The Role of Values in Constitutional Construction	p. 150
Dead Hands	p. 152
Transitions and Precedent	p. 157
Original Intent Revisited	p. 160
Originalism and Politics	p. 163
Are We All Living Constitutionalists Now?: A Response by	p. 165
The Interpretive Role of Nonoriginalism in Solum's Scheme	p. 165
Extent of Liveliness in Solum's Constitutional Law and Bennett's	p. 169
Normative Choices in Interpretation	p. 175
Ordinary or Technical Meaning	p. 177
The Limits of Constraint Based on Language	p. 178
Notes	p. 181
Suggested Readings	p. 199
Index	p. 205
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