Search Results

This chapter advocates a form of constitutional originalism that accepts originalism's major claims while rejecting the label originalism. It first considers the debates about originalism pitting originalists against living constitutionalists. After discussing the arguments for and against various forms of originalism and living constitutionalism, the chapter examines the content of originalism as a constitutional theory, citing its four basic ideas which include the fixation thesis and the public meaning thesis. It then analyzes the linguistic meaning of the Constitution and whether it is binding on judges, the distinction between constitutional interpretation and constitutional construction, and the construction zone. It also addresses the question of justice within the context of the Constitution and concludes by arguing that we must use the word originalism carefully and clearly.

While Sidgwick praises Leslie Stephen's critical account of 18^th century English philosophy, he regrets the brevity of Stephen's treatment of Bentham and Benthamism. This essay is his effort to provide a more substantial account of Bentham's contribution. Sidgwick observes that Bentham's originality and importance lay, not so much in his adoption of utility as an end and as a standard of right action, but in his exclusion of any other standard. Sidgwick devotes much of the article to discussing both the principles that motivated Bentham and central aspects of Bentham's character such as his meticulousness and conscientiousness, and his temperance. Sidgwick then turns to Bentham's contribution to political theory, discussing his opposition to natural rights and his views on constitutional construction.

This chapter comments on Robert Bennett's critique of originalism, especially the latter's claim that the original meaning of the Constitution cannot constrain constitutional decision making. Bennett argues that the constitutional text imposes some constraints on constitutional interpretation, but notes that this constraint is modest at best. He advances various arguments in support of his claim that constitutional practice cannot be constrained by original meaning. The chapter first considers Frederic Waismann's theory that language is open-textured before discussing Bennett's arguments against the constraining force of originalism in more detail. It also examines the conventional semantic meanings of the words and phrases that make up the Constitution, objections to original-intentions originalism, and the role of values in constitutional construction. The chapter concludes by addressing the relationship between originalism and politics.

This chapter analyzes Abraham Lincoln's words and actions in construing the Constitution and defining the Union in the secession crisis of 1861. The crisis came as a result of fundamental disagreement over the type of government the Union was intended to be. Lincoln took up the philosophical issues of the right to revolution and social contract theory. In so doing he rejected the Southern claim of peaceable secession as an illegitimate constitutional construction, and led the Republican party's defense of the Constitution as anti-slavery and the Union as indivisible. While the construction of the Southern secessionists repudiated the ends and purposes of the founding, Lincoln's fulfilled it. The Union victory required Lincoln's persuasive rhetorical defense of natural-rights republican constitutionalism, and confirmed that American nationality was defined by a commitment to political ideas, rather than to race, ethnicity, history, religion, or language.

Constitution making processes should be broadly inclusive. Yet one consequence of inclusiveness in constitutional bargaining in deeply divided societies is that it will be difficult to reach meaningful agreement on any number of issues that relate to the core identities of a relevant society’s disparate groups. In such circumstances, it is important to design the constitution using capacious language that will be deemed broadly acceptable to all. Means to draft language in such a fashion include the wide use of ambiguous or contradictory phrasing, the use of terms suggesting particular aims to be aspirational rather than immediately realized, the deferment of contentious issues for later resolution in subsequent legislation and the embrace of formal amendment rules that make constitutional change easy to achieve. When this is done, it is easy to construct constitutional meaning onto the flexible and capacious framework text of the constitution. Moreover, such flexible and capacious framework text can be used to achieve consensus even when the circumstances of original bargaining were less than ideal, and a constitution was in fact imposed on a recalcitrant constituent group in any relevant social order.

This chapter examines the new originalism, which stresses: (1) original public meaning (as contrasted with the old originalists’ emphasis on the intention of the framers) and (2) the significance of the distinction between constitutional interpretation and constitutional construction (as contrasted with the old originalists’ rejection of construction as illegitimate). It argues that, with their recognition that the relevant original meaning is abstract and that most of the significant work of constitutional decision occurs in the “construction zone”—which lies beyond originalism and often requires normative judgments—the new originalists have made spectacular concessions to the moral reading or philosophic approach. This chapter shows that the inclusiveness of the new originalism—in particular, the arguments regarding construction—undermines the new originalists’ normative arguments for originalism over the moral reading. It suggests that the new originalists should concede that they are engaged in a moral reading of the Constitution.

Constitutions work by constraining, constructing, and constituting politics. Constitutions constrain politics when citizens and governing officials subordinate their policy preferences to constitutional norms. Constitutions construct politics when citizens and governing officials follow the rules that determine whose policy preferences and constitutional understandings at any time are the official law of the land. Constitutions constitute politics when citizens and elected officials are socialized in ways that lead them to internalize constitutional values and regard constitutional processes as the only legitimate means for resolving legal and policy disputes. The common obsessive focus on constitutional constraints ignores alternative means by which the Constitution of the United States works to protect fundamental rights and limit government, disregards entirely how the Constitution of the United States promotes vital constitutional purposes that cannot be reduced to legal norms, and provides an impoverished account of the constitutional crises that have wracked American constitutionalism

The most contentious issue at the time of the drafting of the Iraq Constitution concerned the extent of federalism. This chapter demonstrates how the capacious framework constitutional text on federalism has been constructed by later political actors in a fashion that is, for the most part, broadly consensual. The solution reached is one of de facto asymmetrical federalism, where one region, Iraqi Kurdistan, enjoys broad autonomy, while others remain in a generally centralized state. The chapter also demonstrates how much of this came about through a significant shift of power among the premier Shi’i political movements, and points to dangers within the text that arise by virtue of particular provisions that have proven too rigid.

Being faithful to the text of the Constitution inescapably requires us to make judgments that are not rooted in constitutional text. Even if we agree that we are bound by the formal written Constitution, what that entails cannot be answered by constitutional text alone. How we balance different constitutional rules, commands, and concepts will largely be determined by our unwritten ideas—by our constructions of the Constitution. When it comes to our deepest constitutional debates, we cannot just read the words of the Constitution. Alone the text does not answer many of the constitutional questions we are required to wrestle with. So where do we turn? We cannot escape this question. Wherever we turn to illuminate constitutional text, we are implicitly or explicitly rendering constitutional judgments.

Scalia is originalism and textualism’s most visible advocate—as is evident in his being taken as the model jurist for the appointment of justices Gorscuh, Kavanaugh, and Barrett—even while his interpretation of text was driven by his unwritten ideas. Scalia sought to limit judicial discretion, which is why he turned to text and original meaning. Much like Justice Black’s textual jurisprudence, Scalia’s jurisprudence of original meaning is rooted in unwritten understandings about democracy and the nature of the judiciary that are not obviously drawn from text. While Scalia frequently chastised his colleagues for departing from the Constitution, his quarrels with them were largely over unwritten understandings and ideas that we can see when we turn to his opinions regarding Fourteenth Amendment due process.

The Introduction reveals that all constitutional interpretation rests on unwritten ideas, and that debates about these unwritten ideas are the real source of our disputes about how to faithfully interpret the Constitution. Beginning with the most prominent Supreme Court justices who argue for textualism and originalism, the Introduction makes visible the unwritten ideas that frame their understanding of America’s written Constitution. It also reveals an important split between the political and judicial understanding and practice of interpretation based on the text and original meaning of the Constitution and the scholarly disquisition around originalism and textualism. While scholarly advocates of textualism and originalism recognize the importance of constructing constitutional meaning from sparse text, this move is denied by judges and political defenders of originalism.

Early conflicts over religious liberty and freedom of speech reveal that while we can agree on the Constitution’s text, we can profoundly disagree over the unwritten ideas we think the text represents. Debates about religion and free speech point to deeper unwritten principles that are at the very heart of America’s constitutional republic. The first debate deals with the prohibition on religious tests for office in Article VI. The second speaks to freedom of speech and press. In these early debates about religious liberty and freedom of speech, the antagonists agreed on the wording of constitutional text; they disagreed profoundly on the principles and political theory that underlie it in their understanding of America’s new republic. These early arguments reveal the importance of constructing constitutional meaning from the unwritten ideas that underlie the constitutional text.