Constitutional Originalism

Constitutional Originalism: A Debate

Robert W. Bennett
Lawrence B. Solum
Copyright Date: 2011
Edition: 1
Published by: Cornell University Press
Pages: 224
https://www.jstor.org/stable/10.7591/j.ctt7zdkj
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  • Book Info
    Constitutional Originalism
    Book 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.

    eISBN: 978-0-8014-6063-0
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-xii)
  4. We Are All Originalists Now
    (pp. 1-77)
    Lawrence B. Solum

    Debates about originalism are often full of sound and fury. Originalists rail against judicial activism. Living constitutionalists claim that originalism is nothing more than a political ideology that wraps itself in a constitutional flag. Originalists claim that respect for popular sovereignty requires contemporary courts to defer to the opinions of the framers. Living constitutionalists retort that the founding generation knew nothing of contemporary circumstances like the global Internet or the modern administrative state. Originalists argue that living constitutionalism is a thin disguise for Supreme Court decisions that are based on naked politics. Living constitutionalists argue that constitutional adjudication inevitably involves...

  5. Originalism and the Living American Constitution
    (pp. 78-142)
    Robert W. Bennett

    What has come to be known as originalism in constitutional interpretation has shown remarkable resilience. The basic idea of originalism is that, as written law, the Constitution must be understood today in the same “fixed, unchanging” way it was understood at the time it was crafted and adopted.¹ But there are basic ambiguities in this originalist notion, and time and again skeptical commentators have exposed problems with one or another version. The response by adherents— originalists as they have come to be known—has typically been to come back with a different formulation. Indicative of this shifting ground is that...

  6. Living with Originalism
    (pp. 143-164)
    Lawrence B. Solum

    A major theme of Robert Bennett’s critique of originalism focuses on the question whether the original meaning of the Constitution can constrain constitutional decision making. His answer to this question is a mostly emphatic no. Although Bennett recognizes that the constitutional text imposes some constraints on constitutional interpretation, he insists that this constraint is modest at best. And to the extent that constitutional practice is constrained, much of the work is done by nonoriginalist devices like precedent and the structure of judicial practice.

    Bennett advances a variety of arguments in support of his claim that original meaning cannot strongly constrain...

  7. Are We All Living Constitutionalists Now?
    (pp. 165-180)
    Robert W. Bennett

    This exchange between Professor Solum and me has certainly uncovered disagreements, large and small, and I will turn to some of them shortly. But it is at least as important to appreciate a large area of agreement. In my principal essay, I argued that once judicial review was in place, a continuing injection of contemporary values was essentially inevitable in our judiciary-centered constitutional decision-making process. In particular, I claimed that no plausible version of what is called originalism has the resources to stem a substantial flow of evolving values into our constitutional law, even if they are different from original...

  8. Notes
    (pp. 181-198)
  9. Suggested Readings
    (pp. 199-204)
  10. Index
    (pp. 205-210)