Comparing Literary and Biblical Hermeneutics to Constitutional and Statutory Interpretation

Interpreters determine the meaning of language. To interpret literary and biblical texts, scholars have developed detailed rules, methods, and theories of human understanding. This branch of knowledge, “hermeneutics,” features three basic approaches. First, “textualists” treat words as directly conveying their ordinary meaning to a competent reader today. Second, “contextualists” maintain that verbal meaning depends on generally shared linguistic conventions in the particular historical and cultural environment of the author—and that therefore translations or commentaries are necessary to make the writing intelligible to a modern reader. Third, “hermeneutic circle” scholars argue that texts have no objective meaning. Rather, a person’s subjective perspectives and norms affect his or her understanding of a text, which then generates new meanings that in turn may influence future readers. These three methodologies have parallels in the legal field. Most importantly, judges and scholars have interpreted the United States Constitution by employing (1) textualism, (2) originalism— discerning the meaning of constitutional provisions in historical context, or (3) subjective “living constitutionalism.” Similarly, federal statutes have been analyzed by applying textualism, context-based pragmatism, or freewheeling “dynamic interpretation.” In this Essay, I will begin by summarizing the three main approaches to literary and biblical hermeneutics. I will then explore their analogues in federal constitutional and statutory interpretation

Limiting Article III Standing to Accidental Plaintiffs: Lessons from Environmental and Animal Law Cases

According to the Supreme Court, Article III\u27s extensionof judicialPower to Cases and Controversies limitsstanding to plaintiffs who can demonstrate anindividualized injury in fact that was caused by thedefendant and that is judicially redressable. Article III\u27stext and history, however, do not mention injury, causation, or redressability. Furthermore, these standards are malleable and havebeen applied to achieve ideological goals, especially incases involving environmental and animal-welfare laws.Most notably, the Court has recognized an injury in fact to one\u27s aesthetic enjoyment of nature, but determiningsuch an injury is arbitrarybecause aesthetics is a matterof personal taste. Judges have exercised similar unbridleddiscretion in ascertaining causation and redressability.The result has often been a judicial takeover of importantpolicy issues.Standing decisions are so inconsistent and politicizedthat most scholars have recommended abandoning thedoctrine. However, stare decisis will prevent such aradical change. Therefore, I offer a more realisticapproach that retains the existing standingframework butmodifies its elements. My touchstone is the historicalmeaning of an Article III case, which restricts courtaccess to plaintiffs whose legal rights have been invadedfortuitously because of a chance event beyond their control.Applying this test, courts would find an injury in fact only when it befell a plaintiff by accident, not whensomeone manufactured a lawsuit by claiming aesthetic harm. Insisting on a fortuitous injury would also make it far easier to determine who caused it and whether theremedy requested would redress it

The Paradox of the Obamacare Decision: How Can the Federal Government have Limited Unlimited Power?

National Federation of Independent Business v. Sebelius, the Supreme Court’s decision upholding the landmark Patient Protection and Affordable Care Act (ACA or “Obamacare”), sets forth the most important judicial examination of constitutional power since the New Deal era. The political and media frenzy over the Obamacare case has obscured its actual legal analysis and larger constitutional implications, which warrant more reflective study. This Article seeks to provide such a scholarly perspective. My starting point is the ACA, which has three key provisions. First, it requires “guaranteed issue” of health insurance to all applicants and “community rating” to prevent insurance companies from varying the price of policies to account for individual characteristics such as preexisting medical conditions. Second, the ACA imposes an “Individual Mandate” (IM): Uninsured Americans “shall” obtain “minimum essential coverage” and, if they fail to meet this “individual responsibility requirement,” must pay a “penalty” to the Internal Revenue Service. Third, Obamacare dramatically expands Medicaid to millions of new recipients by requiring states to either provide health care to all of their low-income citizens or lose their current federal Medicaid funding

Playing with Words: Amar’s Nationalist Constitution

This essay provides a balanced critique of Akhil Amar’s important book on early constitutional theory and practice. On the one hand, Amar’s work has three unique virtues. First, unlike other constitutional historians, he does not examine a particular clause or a brief time period (such as 1787‑1789), but rather analyzes the Constitution as a whole from 1760 to 1840. This holistic and longitudinal approach enables him to trace in detail the evolving constitutional views of America’s leading Founders—John Adams, Alexander Hamilton, Thomas Jefferson, James Madison, John Marshall, and George Washington—and the personal relationships among those men that helped shape those views. Amar demonstrates that, contrary to popular belief, these dead white guys actually have much useful to say about modern constitutional law. Second, he contends that the Constitution has always been a living document—the subject of an ongoing conversation among all Americans. Third, among law professors, Amar has no peer as a wordsmith. He writes with singular power, precision, flair, and wit. On the other hand, Professor Amar’s extremely nationalistic vision of the Constitution leads him to excessively praise the similarly broad interpretations of federal power presented by Hamilton, adopted by Washington (whom Amar deems the true Father of the Constitution), and eloquently explicated by the Marshall Court. Conversely, Amar tends to belittle the opposing constitutional approach of Madison and Jefferson as unprincipled political gamesmanship, instead of fully and fairly engaging with their arguments. Indeed, if Amar is correct that the Constitution developed as a dialogue in which ordinary people participated, then they must have endorsed the narrow construction of the Constitution proffered by Jefferson and Madison (and their successors Monroe and Jackson) because Americans elected these men as Presidents for four straight decades. Whether one agree or disagrees with Amar, however, he is our most creative and prolific scholar of constitutional law and history. Therefore, any serious student of the Constitution must grapple with his analysis and conclusions