The Language of Law and the Foundations of American Constitutionalism

by Gary L. McDowell

• ISBN13: 9780521192897
• ISBN10: 0521192897
• Format: Hardcover
• Copyright: 2010-06-28
• Publisher: Cambridge University Press

Summary

For much of its history, the interpretation of the United States Constitution presupposed judges seeking the meaning of the text and the original intentions behind that text, a process that was deemed by Chief Justice John Marshall to be "the most sacred rule of interpretation." Since the end of the nineteenth century, a radically new understanding has developed in which the moral intuition of the judges is allowed to supplant the Constitution's original meaning as the foundation of interpretation. The Founders' constitution of fixed and permanent meaning has been replaced by the idea of a "living" or evolving constitution. Gary L. McDowell refutes this new understanding, recovering the theoretical grounds of the original Constitution as understood by those who framed and ratified it. It was, he argues, the intention of the Founders that the judiciary must be bound by the original meaning of the Constitution when interpreting it.

Table of Contents

Preface and Acknowledgments	p. ix
Introduction: The Politics of Original Intention	p. 1
The Constitution and the Scholarly Tradition: Recovering the Founders's Constituion	p. 9
Nature and the Language of Law: Thomas Hobbes and the Foundations of Modern Constitutionalism	p. 55
Language, Law, and Liberty: John Locke and the Structures of Modern Constitutionalism	p. 82
The Limits of Natural Law: Modern Constitutionalism and the Science of Interpretation	p. 169
The Greatest Improvement on Political Institutions: Natural Rights, the Intentions of the People, and Written Constitutions	p. 225
Chains of the Constitution: Thomas Jefferson, James Madison, and the "Political Metaphysics" of Strict Construction	p. 252
The Most Sacred Rule of Interpretation: John Marshall, Originalism, and the Limits of Judicial Power	p. 311
The Same Yesterday, Today, and Forever: Joseph Story and the Permanence of Constitutional Meaning	p. 343
Epilogue: The Moral Foundations of Originalism	p. 379
Index of Cases	p. 401
General Index	p. 403
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