Fidelity to Natural Law and Natural Rights in Constitutional Interpretation

It is an honor and a pleasure to comment on Professor Robert P. George\u27s elegant and provocative paper.\u27 For one thing, he is a leading proponent of reviving the natural law tradition in political, legal, and constitutional theory.2 For another, he was a reader of my Ph.D. dissertation in constitutional theory at Princeton University over a decade ago. I am happy to have the chance to reciprocate by reading a work of his and providing a critique of it. Fortunately, I learned at Princeton that vigorous criticism and disagreement are fully compatible with friendship and respect

The Balkanization of Originalism

Are we all originalists now? If anything would prompt that question, it would be Ronald Dworkin and Jack Balkin dressing up their theories in the garb of originalism (or, at any rate, being interpreted as originalists). For they are exemplars of two bete noires of originalism as conventionally understood: namely, the moral reading of the Constitution, and pragmatic, living constitutionalism, respectively.\u27 Yet in recent years Dworkin has been interpreted as an abstract originalist2 and Balkin has now embraced the method of text and principle, which he presents as a form of abstract originalism.\u2

The New Originalist Manifesto

Book review: Constitutional Originalism: a Debate. By Lawrence B. Solum and Robert W. Bennett, 2011. Ithaca: Cornell University Press. Pages ix, 210. Reviewed by James E. Fleming

The Constitution Outside the Courts

In this Book Review, Professor Fleming examines Professor Tushnet\u27s arguments against judicial supremacy and in support of making constitutional interpretation less court-centered to pursue a populist constitutional law. The review concedes that Professor Tushnet\u27s arguments that the “thick Constitution”--in particular, its commitments to federalism, states\u27 rights, and separation of powers--is self-enforcing through the political processes are compelling. But it contends that he fails to make the case that the “thin Constitution”--for example, its fundamental guarantees of equality, freedom of expression, and liberty-- should be treated as similarly self-enforcing. Furthermore, Professor Fleming charges that Professor Tushnet does not adequately elaborate how legislatures, executives, and citizens should conscientiously interpret the Constitution, or sufficiently consider how to revise our current practice to make it more likely that these bodies will fulfill their obligations to do so. Finally, he argues that Tushnet\u27s notion of the thin Constitution is too thin to constitute us as a people. Nonetheless, the review concludes *216 that Professor Tushnet has helped lay the groundwork for taking the Constitution seriously outside the courts, not by taking it away from courts, but instead by taking it to legislatures, executives, and citizens generally. Moreover, Professor Fleming concludes that Professor Tushnet\u27s book is the most provocative and significant contribution to this project to date