Steven Semeraro: Interpreting the Constitution's Elegant Specificities
Steven Semeraro (Thomas Jefferson School of Law) has posted Interpreting the Constitution's Elegant Specificities (Buffalo Law Review, Vol. 65, forthcoming) on SSRN. Here is the abstract:
Professor Semeraro proposes a new method of constitutional interpretation – farsighted originalism – for cases dealing with specific constitutional clauses regulating intra-governmental conflicts. Scholars and judges have long assumed that these specific clauses would prove easier to interpret than the Constitution’s majestic generalities protecting individual rights. But in the last two terms, bitterly divided Courts have struggled with very specific clauses regulating intra-governmental action. Using an analogy to quantum mechanics, Professor Semeraro shows that the Constitution’s specific clauses should be interpreted through the problem solving rubric embodied in the clause. This rubric creates a superposition of potential original meanings, all of which the founding generation – in a meaningful sense – held, even though they may not have considered all of the circumstances to which the rubric might apply. In this way, the meaning of the Constitution remains fixed, as originalism requires, while simultaneously living to resolve new problems.
This article then responds to the critique that the proposed interpretive method may permit judges to incorporate their own modern sensibilities into constitutional interpretation because the superposition of original public meanings is too flexible. This article responds that the originalists’ hope for a wholly inter-subjective method of interpretation assumes a radical distinction between fact and value that has been questioned by legal and linguistic philosophers. If fact and value are intertwined as these philosophers have claimed, the farsighted originalism approach may better capture original meaning that other narrower forms of originalism.