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The Misconceived Assumption About Constitutional Assumptions
Both originalists and nonoriginalists alike often assume that background assumptions widely held when the Constitution or its amendments were enacted are part of the original meaning of the text. Originalists sometimes appeal to these background assumptions to render the meaning of more abstract words or phrases more determinate; nonoriginalist point to odious or outmoded assumptions as proof that original meaning is objectionable and should be rejected.
In this paper, the author examines the proper role of background assumptions in constitutional interpretation when ascertaining the meaning of the terms, and in constitutional construction when applying this meaning to particular cases and controversies. Rather than present a normative argument on behalf of originalism, he merely tries to identify what the original meaning of the text really isâin particular, the circumstances in which background assumptions become a part of that meaning. While this analysis should be of obvious interest to originalists, it should also be of interest to any nonoriginalist who believes that the original meaning of the text is at least one factor or âmodalityâ of constitutional interpretation to be balanced against other considerations.
In Part I, the author explains how express and implied in fact terms provide the meaning of both written contracts and written constitutions. In Part II, he distinguishes this meaning of the text from the background assumptions that can result in the failure of a contract when circumstances arise about which the text is silent. Unlike contracts, however, with constitutions âfailureâ is not an option. Further, while background assumptions can be relevant to interpreting the meaning of ambiguous terms in both contracts and constitutions, most sustained disputes over constitutional terms concern, not the interpretation of ambiguity, but the construction of terms whose meaning is vague.
Part III considers how oneâs approach to the construction of vague terms will depend on oneâs theory of constitutional legitimacyâthat is, what makes a constitution âbinding.â If, like contracts, the legitimacy of constitutions is based on original consent of the governed then, as with contracts, background assumptions can be viewed as silently conditioning that consent. On the other hand, if constitutional legitimacy is based on the justice of imposing laws on a nonconsenting public, then odious background assumptions are irrelevant to construing vagueness. This divide is illustrated by the antebellum debates over the constitutionality of slavery. Finally, in Part IV, this analysis is applied to three background assumptions: (1) that there are unenumerated natural rights, (2) that there is an unenumerated police power of states, and (3) that certain interpretive methods would be employed by courts
Is the Rehnquist Court an Activist Court? The Commerce Cause Cases
In United States v. Lopez, the Supreme Court, for the first time in sixty years, declared an act of Congress unconstitutional because Congress had exceeded its powers under the Commerce Clause. In 2000, the Court reaffirmed the stance it took in Lopez in the case of United States v. Morrison, once again finding that Congress had exceeded its powers. Are these examples of something properly called judicial activism ? To answer this question, we must clarify the meaning of the term judicial activism. With this meaning in hand, the author examines the Court\u27s Commerce Clause cases. The answer he gives to the question of whether the Rehnquist Court is an activist court is no
Interpretation and Construction
In recent years, it has become apparent that there is a difference between (a) discovering the semantic meaning of the words in the text of the Constitution, and (b) putting that meaning into effect by applying it in particular cases and controversies. To capture this difference, following the lead of political science professor Keith Whittington, legal scholars are increasingly distinguishing between the activities of âinterpretationâ and âconstruction.â Although the Supreme Court unavoidably engages in both activities, it is useful to keep these categories separate. For one thing, if originalism is a theory of interpretation, then it may be of limited utility in formulating a theory of construction, other than in requiring that original meaning not be disregarded or undermined.
This Essay elaborates and defends the importance of distinguishing interpretation from construction for the benefit of those who may not be entirely familiar with the distinction between these two activities. Although the author begins by offering definitions of interpretation and construction, the labels are not important. Both activities could be called âinterpretationââfor example, something like âsemantic interpretationâ and âapplicative interpretation.â Still, the terms âinterpretationâ and âconstructionâ are of ancient vintage and, although not always precisely defined in this way, were traditionally used to distinguish between these two different activities in which courts and other constitutional actors routinely engage when dealing with authoritative writings, be they contracts, statutes, or the Constitution
Justice Kennedy\u27s Libertarian Revolution: Lawrence v. Texas
This brief article explains why Lawrence v. Texas could be a revolutionary case if the Supreme Court follows Justice Kennedy\u27s reasoning in the future. As in Planned Parenthood v. Casey, Justice Kennedy finds a statute to be unconstitutional, not because it infringes a right to privacy (which is mentioned but once), but because it infringes liberty (a word he uses at least twenty-five times). In addition, Justice Kennedy\u27s opinion protects liberty without any finding that the liberty being restricted is a fundamental right. Instead, having identified the conduct prohibited as liberty, he turns to the purported justification for the statute and finds it inadequate. This represents a marked rejection of the fundamental rights jurisprudence as it has developed since Griswold v. Connecticut, and the adoptionâsub silentioâof a presumption of liberty
Contract Scholarship and the Reemergence of Legal Philosophy
It has been thirty years since Arthur Corbin\u27s eight-volume treatise on contracts appeared in condensed form as a one-volume edition. No scholarly book on contract law of comparable scope has been published since. This void in contract law scholarship has been filled only by the occasional law review article, by books discussing particular aspects of contract law, and by the ongoing revisions of the Restatement of Contracts that culminated in the publication of the Restatement (Second) of Contracts in 1979.
The dominant legal climate has not been friendly to any form of literature that attempts to explicate legal doctrine systematically, and this attitude has been particularly prevalent in contract law. That Professor Farnsworth\u27s treatise on contracts should make its appearance now is, therefore, a development worth explaining. It is my contention that the publication of this book at this time may be in part a product of the increased support from legal philosophers in recent years for traditional forms of legal reasoning based on principle and expressed through doctrine
Can Justice and the Rule of Law Be Reconciled?
Much of the current debate between activists on the left and the right concerning the legal system can be conceived in purely jurisprudential, as opposed to political, terms. Today, many on the left insist that the decisions made by the legal system conform as closely as possible to some substantive conception of justice that is independent of the legal system itself. They call those who disagree formalists. Many on the right insist that the procedural values of the rule of law -general rule-making, impartially administered among persons and over time-preempt concern for correct outcomes. They call those who disagree result-oriented
The Choice Between Madison and FDR
This exchange is about three clauses that have often been used by the courts since the New Deal to expand federal power: the Commerce Clause, the Necessary and Proper Clause, and the Taxation Clause, from which the spending power has (at least until today) been construed. This Essay addresses the originalist interpretation of the Necessary and Proper Clause
...and Contractual Consent
In Part I, the author contends that when economists persistently ignore the importance of contractual consent, they are missing the crucial problem of legitimacy. In Parts II and IV, he responds to the criticisms of his consent theory of contract advanced by Jay Feinman and Dennis Patterson. Both Feinman and Patterson object to the enterprise in which the author and others are engaging, and he explains why each is wrong to dismiss the current debate over default rules. Finally, in contrast, in Part III the author shows how Steven Burton\u27s theory of default rules, which he finds most congenial, is quite compatible with his despite the fact that Burton thinks they disagree
Trumping Precedent With Original Meaning: Not As Radical As It Sounds
Originalism was thought to be buried in the 1980s with critiques such as those by Paul Brest and Jeff Powell. Brest charged that originalism was unworkable, while Powell maintained that originalism was inconsistent with the original intentions of the Founders. Others raised the moral challenge of why we should be ruled by the dead hand of the past. Yet an originalist approach to interpretation has-like a phoenix from the ashes or Dracula from his grave, depending on your point of view-survived into the Twenty-first Century as an intellectual contender. Indeed, it has thrived like no other approach to interpretation
The Wages of Crying Judicial Restraint
Five Justices voted to affirm the proposition that the Constitution creates a government of limited and enumerated powers and that the courts will enforce those limits. To understand why this victory was possible, it is important to understand that there are not just two versions of federalism, preâNew Deal and postâNew Deal. There is also a third version. The failure to recognize the third version goes a long way to explain why most of my academic colleagues predicted that the right would have no chance to prevail in our constitutional challenge to the individual insurance mandate.
The first version of federalism is the preâNew Deal version. This version affirms that the Constitution established a national government of limited and enumerated powers, that those powers should be interpreted according to their original meaning, and that much of what the federal government tried to do before the New Deal, and did during the New Deal and after, is unconstitutional.
The postâNew Deal vision of federalism has been interpreted by progressives, quite beyond what the Court has actually said, as repudiating the idea that the Constitution enumerates certain limited congressional powers and that these limits are to be enforced by the courts. This progressive vision of the postâ New Deal federalism essentially says that Congress has the plenary power to legislate as it will with respect to the national economy.9 Put another way, the Commerce and Necessary and Proper Clauses combine to create a âNational Problems Powerâ vested in Congress.
Because most law professors held this vision of the New Deal, it came as quite a shock to them when the Rehnquist Court established the New Federalism. The New Federalism established the proposition that there were limits that were compelled by what Chief Justice Rehnquist referred to as âfirst principlesâ of constitutional government. That these limits would be enforced by the Court seemingly rejected and repudiated the progressive vision of the postâNew Deal constitutionalism that, up to that point, had seemed orthodoxy
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