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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Solum on Semantic Originalism
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Sunday, April 27, 2008
Solum on Semantic Originalism
Stephen Griffin
This is a somewhat lengthy post on Larry Solum’s massive intervention into the ongoing debates over originalism. Solum’s long article may prove to be a turning point, although I suspect he faces many hurdles in winning acceptance for his central contention that the foundations of originalism are firmly rooted in a semantic, factual, and non-normative account of the meaning of the Constitution. Except for the next paragraph, I will not attempt to summarize Solum’s article. A decent summary would probably take up 10-15 law review pages and, after all, this is a blog! I will raise some questions about Solum’s theory of originalism and make some comments, starting with questions I believe he can answer fairly easily and working up to problems I see as more difficult. Posted 2:51 PM by Stephen Griffin [link]
Comments:
I would just observe that when someone actually digs into the weeds of originalism, as this post did, our resident conservatives don't seem that interested. Originalism is only useful to conservatives as a political argument. As for actual interpretative theory, it is of no interest, because it can't be used to paint the judiciary as a good vs. evil struggle between conservatives who follow the law and liberals who don't.
Hi there,
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I don't think it's correct to say that the clauses of the Constitution had a fixed meaning at the time of the adoption. How could the differences between the Federalists and the Republicans have grown so extreme in 12 years if the Constitution had the same meaning to both? Indeed, it appears that these two groups differed even on what it meant to be a nation-state, the governance of which the Constitution was trying to achieve. There certainly seems to be no unity of understanding around the powers of the federal government vis-a-vis the Bank of the United States, excise taxes, or the Louisiana Purchase.
There is no dispute that what Jeremiah Wright says has semantic content, we take meaning from his words. But what we say he says depends on why we say what he says, and at this point his words have been polemicized to the point that they no longer mean what he meant them to mean. (BTW, this has taken only one year.) From the time the Constitution emerged from the Convention, it entered into public discourse and its meaning began to change as people began construing clauses together and describing the powers and possibilities which those constructions admitted. Certain meanings were favorable to certain interests, others to others; philosophical feralism/republicanism became reified as political Federalism/Republicanism. Constitutional interpretation is politics by another means, and originalism (phony or otherwise) is just another mode.
Stephen Griffin said (original post) --
>>>>> So some might view the message of Articles I, II, III as saying there should be three co-equal branches of government. <<<<<< How does covering the three branches in three separate articles convey a message that the branches were intended to be co-equal? It is obvious that the Constitution gave more power to the legislative branch than to the executive and judicial branches. If the three branches appear to be co-equal today, that is because the executive and judicial branches have usurped powers not delegated to them by the Constitution. >>>>>> And some view the entire Constitution as communicating a meaning best summarized in the Preamble. <<<<< The Preamble is so general that it is of no use in interpreting the Constitution.
thanks so much i like very so much your post
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