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04/10/2017

Lawrence Solum: The Constraint Principle
Michael Ramsey

Lawrence B. Solum (Georgetown University Law Center) has posted The Constraint Principle: Original Meaning and Constitutional Practice on SSRN.  Here is the abstract:

Originalism is a family of constitutional theories (almost all of which) agree that the original meaning of the constitutional text should constrain constitutional practice. Call this idea the “Constraint Principle.” Provisionally, the Constraint Principle is the claim that (at a minimum) the content of constitutional doctrine and the decision of constitutional cases should be consistent with the original meaning of the constitutional text. This principle has the implication that constitutional actors, including the Supreme Court, adopt constitutional constructions that effectively amend the Constitution. The aim of this article is to explicate and justify the Constraint Principle.

Part I explores the role of the Constraint Principle in contemporary constitutional theory, answering the question “what is originalism?” and laying out the most important forms of nonoriginalism and living constitutionalism. Part II excavates the conceptual foundations of the idea of constraint and examines the various forms that constraint could take. Part III frames the debate over the Constraint Principle by exploring the various forms that justification could take and considering the role of the burden of persuasion in the debate. Part IV sets two clusters of justifications for the Constraint Principle, the rule-of-law cluster and the legitimacy cluster. Part V considers some alternative justifications for constraint. Part VI considers various objections to the Constraint Principle. Part VII reconsiders the rivals of originalism. Part VIII summarizes the case for constraint. The Article ends with a Conclusion.

RELATED:  At Legal Theory Blog, Professor Solum has undertaken a multi-part defense of originalism, in part based on this article.  I will post links to all the posts once they are complete.