James Allan on Larry Alexander on Originalism
Michael Ramsey
James Allan (The University of Queensland - T.C. Beirne School of Law) has posted In Honor of a Simple-Minded Originalist (34 Constitutional Commentary 401 (2019)) (17 pages) on SSRN (reviewing Moral Puzzles and Legal Perplexities: Essays on the Influence of Larry Alexander (Heidi M. Hurd ed., Cambridge University Press. 2019). From the introduction (footnotes omitted):
In May, 2017 the Yale Law School’s Center for Law and Philosophy, together with the University of Illinois’ Program in Law and Philosophy, co-hosted a conference at the alma mater of Larry Alexander, Yale Law School. The conference brought together eminent legal scholars in the areas of criminal law theory, constitutional law theory, jurisprudence and moral philosophy. They were there to honor Professor Larry Alexander of the University of San Diego School of Law, and the result of that celebratory conference, or Festschrift (in these more globalist times), is this very recently published Cambridge University Press book. And my, oh my, it is a very good book indeed. I mean that not just in the sense of it being good compared to the usual book length edited collection of two dozen odd essays that have to be stuffed between two covers. I mean it is a really good book even by the standards of a well-crafted, sole-authored monograph. The editor, Heidi Hurd, has done an excellent job of fitting together into a coherent whole all 22 contributing authors’ essays or chapters, together with her own introduction and a last-word reply-to-everyone final say by Alexander himself.
The book has four Parts, namely (and in order) “Puzzles in Criminal Law,” “Problems in Constitutional Law,” “Perplexities in Jurisprudence,” and “Parodoxes in Moral Philosophy.” Given the usual interests of the readers of this journal, I will focus on just the middle two of those Parts, which in various ways elucidate important issues that bear on constitutional law...
... And most obviously that brings me to the question of constitutional interpretation because Larry Alexander is a leading proponent of originalism, of the old school (and these days very minority) intentionalist variety. As a self-described “simple-minded originalist,” Alexander embraces his position firstly as a thesis about how language is used, secondly as one about the nature of all interpretation, and thirdly in normative terms about why in interpreting we should defer to the intended meanings of the authors of legal texts—so it is all three for Alexander, semantic, pragmatic and normative....