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32 posts from February 2011


The Textualist
Mike Rappaport

Robert C. Power (Widener University- School of Law) has posted The Textualist (Northwestern University Law Review, Vol. 84, 1990) on SSRN. Here is the abstract:

This essay reviews George Anastaplo's book The Constitution of 1787: A Commentary. Anastaplo is a follower of William Winslow Crosskey, the iconoclastic constitutional law professor at the University of Chicago in the middle part of the 1900's. Anastaplo revisits several of Crosskey's major theories - a unique version of textualism, unbridled commerce power, and a Supreme Court with the duty to make national common law (but no power of judicial review). Anastaplo's book takes a methodical approach through all of the provisions of the Constitution, including some often overlooked as excess verbiage, such as the Preamble. He also notes the organization of the list of congressional powers and draws conclusions about their meaning. He also concludes from the relative absence of language delegating executive power that the President has less power than is generally accepted today. The essay praises Anastaplo for rekindling interest in Crosskey's work and for encouraging contemporary constitutional scholars and interested laypersons to rethink what they learned as unquestioned truth in law school or civics class. In the end the essay rejects most of Anastaplo's conclusions about constitutional meaning for a variety of reasons, with emphasis on the failure of either originalism or textualism to provide a useful answers to the most important constitutional questions of our time.

Originalism on the Web
Mike Rappaport

The Week on The Constitution: What the Founders intended.


The Dictionary Is Not a Fortress
Mike Rappaport

Stephen C. Mouritsen has posted The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning (Brigham Young University Law Review, p.1915, 2010) on SSRN. Here is the abstract:

"Plain meaning," said Judge Frank Easterbrook, "as a way to understand language is silly. In interesting cases, meaning is not 'plain'; it must be imputed; and the choice among meanings must have a footing more solid than a dictionary."

This paper proposes an empirical method for determining the "ordinary meaning" of statutory terms; an approach grounded in a linguistic methodology known as Corpus Linguistics. I begin by addressing a number of commonly held, but ultimately erroneous assumptions about the content and structure of dictionaries – assumptions that find their way into judicial reasoning with alarming frequency.

I then outline an approach to the resolution of lexical ambiguity in statutory interpretation – an approach based on Corpus Linguistics methods. Corpus Linguistics is an empirical methodology that analyzes language function and use by means of large electronic databases called corpora. A corpus is a principled collection of naturally occurring language data, typically tagged with grammatical content and searchable in such a way that the ordinary use of a given term in a given context may be ascertained.

Though Corpus Linguistics is not a panacea, the methodology has the potential to remove the determination of ordinary meaning from the black box of the judge's mental impression and render the discussion of the ordinary meaning of statutory terms one of tangible and quantifiable reality.


Originalism in the Blogs
Mike Rappaport

Orin Kerr on A Comment on District Court Originalism.

Gerard Magliocca on John Bingham and Originalism.

David Gans on Giving Originalism a Bad Name.

David Kopel responds to David Gans in “Health Laws of Every Description”: Obamacare and Original Meaning.


Links to Atom and RSS Feeds Added
Mike Rappaport

We've added subscription links to our Atom and RSS feeds to the bottom of the sidebar column.  An Atom feed performs the same function as an RSS feed.


Originalism on the Web
Mike Rappaport

Lachlan Markay on For NYT, Originalism Is 'Political Bias'

Trifling Violence: The U.S. Supreme Court, Domestic Violence and the Golden Rule
Mike Rappaport

Jeffrey R. Baker (Faulkner University Jones School of Law) has posted Trifling Violence: The U.S. Supreme Court, Domestic Violence and the Golden Rule on SSRN. Here is the abstract:

Domestic violence is ubiquitous across eras, cultures, religions and political systems. Feminist responses to domestic violence seek to free women from gender subjugation, but such movement inevitably challenges moral and natural claims about marriage and family in traditional society. These traditions often claim religious and moral authority, while reformers often have overreacted by abandoning established moral thought in favor of relativistic, individual moral discernment. This tension is manifest in the struggle at common law to adjust moral language to the gradual, radical evolution of gender status and marriage. 

The plight of women and girls in the developing world is the preeminent human rights issue of our age, and it coincides with remarkable, quick shifts in the legal and cultural definitions of marriage and family in America. In this milieu, we witness the rise of originalism and a resurgence of “new” natural law in jurisprudence and moral philosophy, pushing against feminist lawmaking and the rapid development of domestic violence law within a generation. My article takes stock of the moral ground at the intersection of these forces and measures them against a metric of neighbor-love and charity. 

I examine the history of domestic violence in the common law at the Supreme Court to illuminate the challenge to liberating, empowering reform and the defensive resistance of traditional moral claims. I propose to revive an ancient idea, the Golden Rule, as the core moral, natural underpinning for marriage and family law, especially as it implicates domestic violence. The old common law of marriage made stark and bold claims to nature and morality but did not accommodate the deeper principle of intentional, disciplined love. Likewise, the Court’s contemporary moral metric, sharply deferential to individual conscience, ignores the fundamental moral rule, upon which Western jurisprudence must and ought to hang. This moment generates a divide that alienates traditional claims to morality from feminist claims to human dignity, when both might share constructive space within a rigorous Golden Rule. 

The immoral roots of the common law survive to this day in generations of victims and perpetrators. If the common law’s old claims to morality and nature had grappled with love and the Golden Rule, courts could not have ignored the ugly, violent effects of subjugation in traditional marriage. Thus, I offer a caution for our age, first suggesting that courts and lawmakers should be wary of importing the bad moral reasoning of the founding era as it relates to families and marriage, and then suggesting that an ethic of love is a sounder foundation than blind genuflection to individual sovereignty and autonomous moral discernment. Rather than discarding established moral and religious ideas, courts should sound the law in the superior, antecedent Golden Rule.


Originalism in the Blogs
Mike Rappaport

W.W.  at the Economist Blog exclaims You got originalism in my stare decisis!


Comparative Originalism
Mike Rappaport

David Fontana (George Washington University Law School) has posted Comparative Originalism (Texas Law Review See Also, Vol. 88, p. 189, 2010) on SSRN. Here is the abstract:

Jamal Greene has written an important paper examining originalism in other countries. This short response argues that comparing the United States with Canada and Australia (the countries Professor Greene mostly examines) involves comparing quite different countries, because the Canadian and Australian constitutions reorganized preexisting institutions, whereas the United States had more of a nation-creating, revolutionary constitution. Other countries that arose out of more revolutionary events, such as certain post-colonial African and Latin American nations, have also tended to feature originalist arguments. When the nation predates the creation of a constitution, key cultural and political understandings also predate the constitution, thereby diminishing the importance of originalism.


Originalism on the Web
Mike Rappaport

The archived webcast of the Ohio State Law Journal: 2010 Symposium: Originalism and the Jury is available in three parts: Part I | Part II | Part III.

Michael B. Rappaport on How a Bill Becomes a Law: The Constitutional Way. (This piece was originally written for the Heritage Guide to the Constitution