Manual Living Originalism

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Balkin offers a powerful theory that clarifies originalism and living constitutionalism, constructing a theory of living originalism that brings the two together. Balkin articulates a theory about how constitutions have basic meanings that are particularly applied in and over time, showing how text, intent, and meaning can provide both a framework for democracy and a guide for how judges should approach specific issues such as equal protection.

Schultz, Choice.

Debate: Originalism vs. Living Constitution

Despite my deep disagreement with several of its key claims, it is without doubt a work of remarkable sophistication, maturity, and grace. It offers brilliant argument and insights and is often truly moving in its conception of what it means to take the Constitution seriously. In Living Originalism , he shows why it is not enough to perform leaps of lexicographical legerdemain that have little to do with the real history of our founding document. Particularly suited to. Fit; suitable; adapted; accommodated.

Perhaps, rather than Chief Marshall allowing his own fine-tuned sense of what was permissible under COTUS, a quick review of the generally accepted public, and I would argue, legal, meaning of Necessary and Proper would have yielded a different result. I believe that it could have done just that. Gabe, I share your view overall And lest I be accused in my separately stated approach of advocating that we simply turn the matter over to academicians, let me add from my personal experience that the best source of originalism input to the federal courts should be the resourceful research, writing and advocacy of resourceful, skilled trial and appellate lawyers drawing upon, citing and arguing from fact, principle and logic derived from the best written and testimonial sources of original constitutional meaning they can find.

Commentary

Wigmore said, and I still believe, that cross-examination is the best engine devised for the test of truth ever devised. We see no Chief Counsel asking questions and no Committee member up to the task in any of the Collusion Congressional hearings, and because of that these hearings have been far more protracted and far less productive than they should have been by now.

The Senate is even worse, with no Chief Counsel asking questions and Chairman Chuck Grassley nearly senile and so slow as to take forever to get to a point. Real prosecutors given real latitude as in the Watergate Heraings would make real progress real fast. Walsh clerked for Scalia, too, so he learned from the master.

And he taught my brilliant daughter. Original intent is not a rabbit hole. Judges are the wielders of power, and they need agree on only one judicial method: to interpret and apply the constitution as it was meant intended to be understood when at the time those who wrote and approved it the Founders did so employing the words, phrases and structure which they employed. How its words legal, political and commonly-used words were used and understood at the time by the Founders is key to federal judges arriving at that understanding.

My two cents worth is that historians have the most to offer, law school profs the least, linguists should not be ignored and that Raoul Berger, Robert Bork and Antonin Scalia, while not in full accord, should serve as guideposts for the judges who will enforce original meaning as intended and written by those who wrote and ratified the constitution.

Is Originalism a Theory? Is Living Constitutionalism?

They love to bloviate about how valuable and knowledgeable they are, but when you ask them basic questions, either they get it wrong, but far more often, they immediately start ducking the subject or getting into personal attacks. And yet that never humbles them. They are convinced they simply know more, without ever having to demonstrate it or add to the discussion.


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Good point. I mean that judges should seek the guidance, if helpful, of linguists who have studied the era and would qualify in court as expert in its language and its customary verbal usage. Hamburger along with the deceased David P. Currie with whom I worked and Raoul Berger whose works I read when they were first written and Robert Bork fit the bill. The run-of-the- mill Con Law prof does not, at least one of whom comes to mind. FWIW, I think that we should insist that the judiciary, from top to bottom, be constitutional literalists and nothing more.

That is to say their decisions should confine themselves only a discussion of the actual text of the Constitution and the facts of the case before the bar. As you know, I also think that the Federalist Papers are nothing more than propaganda and therefore should not be cited at all and that constitutional interpretation should be without reference to any prior judicial musings on the same or on similar points and that any decision issued should bind only the specific parties to the litigation and be applied only to the facts of the individual case being considered. Any wider application of any given decision should be a matter for Congress and the Executive to decide.

Under this model there will be errors but as long as the literal text of the Constitution is the only reference point the errors will be tethered to the actual text Constitution and not to the vast cannon of dicta enshrined in the many volumes of the Supreme Court Reports. Suppose the worse district court judge imaginable reads the text of the Constitution in the worse way imaginable; then there are two levels of review available but the appellate courts are also limited to their reading of the text to correct the decision. In the worse case scenario, if they all do their worst, there is only one victim.

But in most cases, the ultimate decision will cleve closely to the text of the Constitution. Your email address will not be published. Notify me of follow-up comments by email. Notify me of new posts by email. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. About Contact Staff. Charles Zug Charles U. Zug is a doctoral candidate in government at the University of Texas, Austin.

The Constitutional Categories of Impeachable Offenses. Recent Popular Posts Popular. July 3, Comments To be fair, the intent of a phrase or passage in the Constitution IS important. EK: Sub rosa constitutional amendments by RW judges are at least as pernicious as the worst excesses of the Warren Court e. To all: It strikes me that, try as we may, we are constitutionally pun intended incapable of avoiding recourse to intent.

Unavoidable; as a necessary inference or consequence from facts or arguments. Fit; suitable; adapted; accommodated Ok, so I was a bit selective but not much. And that is all I want!!! Surely, there must be more than one Phillip Hamburger out there! Such resolution also requires understanding of relevant factual evidence, institutional constraints, and perhaps other factors, as well.

For example, in my view, originalist methodology justifies striking down sex-discriminatory laws that most would have considered constitutional in , because we now have better factual evidence on the capabilities of women. Much though not all of the disagreement among originalists turns on these kinds of issues.

As originalist legal thought has developed, internal disagreements among originalists have clearly grown. But that does not mean there is no longer any significant common ground among them. To use an admittedly imperfect analogy: over time, many internal disagreements have arisen between different types of Christians. They disagree amongst themselves on numerous theological questions, and also on practical moral and political issues, such as abortion and the death penalty. But there are still significant commonalities among Christians that separate them from adherents of other religions and from atheists and agnostics.

For example, Christians overwhelmingly agree on the crucial importance of Jesus Christ even while differing on its exact nature , and on the idea that the Old and New Testaments contain some sort of divinely inspired moral guidance. Similarly, originalists agree on the importance of an unchanging original meaning of the Constitution, even as they differ greatly on exactly what that meaning is, and how courts and others should apply it. Moreover, there is more agreement about particular cases among originalists than Segall lets on.

For example, there is widespread agreement among originalists that the original meaning sets tighter limits on the scope of federal power relative to the states than is currently the case under post-New Deal Supreme Court precedent, that the Constitution provides substantially greater protection for property rights than currently exists, and that the Second Amendment includes a relatively robust individual right to bear arms.

In sum, despite extensive internal disagreement, most originalists do agree on some important propositions.

On Originalism in Constitutional Interpretation - On Originalism in Constitutional Interpretation

And originalism would still qualify as a theory even if there was no broad consensus on case outcomes among its advocates. If disagreement on various theoretical issues and case outcomes does disqualify originalism from being a theory, the same applies to living constitutionalism. Like originalists, living constitutionalists also disagree among themselves on basic theoretical issues, on the extent to which courts should defer to the other branches of government, and on case outcomes.

For example, living-constitutionalist opinion on judicial deference ranges from those who would do away with binding judicial review almost entirely e. On basic theoretical premises, living constitutionalists disagree even more than originalists do. For example, there are huge differences between John Hart Ely's "representation-reinforcement" theory , David Strauss' "common law constitutionalism," Ronald Dworkin's moral approach to constitutional interpretation , and Bruce Ackerman's theory of "constitutional moments.

Segall suggests that living constitutionalism has more of a common core than originalism because "so-called living constitutionalists, such as Professors Philip Bobbit, Mike Dorf, Dick Fallon, and Larry Tribe, who argue for a pluralistic method of constitutional interpretation, are quite clearly advocating an approach they believe is both normative and descriptive. They argue that judges use well-recognized factors such as text, history, political practices, non-ratification era history, and evaluations of consequences to decide cases.

In other words, they have a theory, it is well-thought out, and many non-originalists embrace it. These four scholars, of course, do not exhaust the range of living-constitution theories. Far from it. Moreover, while their theories are "both normative and descriptive" in the sense that they all believe that a "pluralistic" approach to interpretation is justified and that many real-world judges use a variety of methods, the scholars in question disagree among themselves about both specific constitutional issues, and how to weigh different modes of interpretation against each other when they conflict.