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06/05/2018

Stephen Sachs: The Law and Morals of Interpretation
Michael Ramsey

Stephen E. Sachs (Duke University School of Law) has posted The Law and Morals of Interpretation (Duke Journal of Constitutional Law & Public Policy, Vol. 13, No. 2, pp.103-114, 2018) on SSRN.  Here is the abstract:

Andrew Coan offers a fresh and forthright response to the long disagreement over constitutional interpretation. Instead of entering the debate between originalism and nonoriginalism, he proposes to settle it, through an amendment proclaiming nonoriginalism as the law of the land. Under the Coan Amendment, the entire Constitution would be construed "to accommodate the practical exigencies of human affairs and the evolving standards of decency that mark the progress of a maturing society." This Amendment, he writes, would "eliminat[e] a huge quantity of basically unproductive debate about the legal and moral necessity of originalism," thereby "redirect[ing]” that effort “to far more pressing matters of constitutional substance."

Coan offers his suggestion as a "thought experiment," not a "serious proposal." This is a good thing, because the substantive effect of his proposal would be unambiguously bad. But even as a thought experiment, it’s unclear how much the Amendment shows. The legal debate over the status of originalism can indeed be settled by new law. But the moral status of originalism -- and, indeed, of our law more generally -- is not so easily settled.

Professor Coan's article is Amending the Law of Constitutional Interpretation (13 Duke Journal of Constitutional Law & Public Policy 85 (2018).  See also earlier reactions by Ilya Somin (here) and me (here).

(Via Larry Solum at Legal Theory Blog).