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
In the spirit of the
day, and in homage tothemaster, I thought I would share a new paper that may
be of interest. Deepening his foundational work and refining some of
its core claims, Lawrence B. Solum (Georgetown University Law Center) has
posted Pedantic Originalism (unpublished monograph) on
SSRN. Here is the abstract:
Pedantic originalism is a theory of
constitutional meaning that aims, through meticulous philosophical analysis, to
(1) clarify the role of original meaning in constitutional interpretation, (2)
ground originalist inquiry in the pragmatics of natural language, and (3)
reorient constitutional debate away from contentious normative questions and
toward more congenial topics in legal semantics.
After a brief introduction,
Part I (pp. 56-93) describes the fixation thesis, which
asserts that the communicative content of a constitutional provision is
fixed at the time the provision is framed and ratified. Where the
Constitution uses “he,” it should accordingly be interpreted as “he or she” except
when the framers and ratifiers really did have males in mind; in such
instances, the principle of tough luckcontrols.
Part II (pp. 94-169) describes the contribution
thesis, which asserts that the linguistic meaning of the constitutional
text makes a contribution to constitutional doctrine. It will often
be difficult to say exactly what sort of contribution, but certainly an
influence greater than zero can be assumed.
Part III (pp. 170-257)
describes the fidelity thesis, which asserts that those who deny
the contribution thesis reveal themselves to be unfaithful citizens. Whether or not this conclusion extends to
those who deny even a generalized version of the fixation thesis depends
on whether such persons are deemed to have the capacity for rational thought.
Part IV (pp. 258-305) tells
the story of originalism’s theoretical development. Consistent with the demands
of interpretive charity and narrative economy, it stipulates that originalism
emerged autochthonously from the search for truth within the legal academy.
Part V (pp. 306-393) takes up the issue of
liability for “accidents” that occur in the construction zone,
where the linguistic meaning of the constitutional text underdetermines
results. Responding to Jack Balkin’s work on abortion and original
understandings, it introduces the concept of an originalism bullshit
detector to police this zone, as well as the concept of excommunication
from San Diego as the key sanctioning mechanism.
Finally, Part VI (pp. 394-486) responds to
objections that originalism is anathema to democratic self-rule and an elegy to
patriarchy and white supremacy. The Gricean theory of implicature, it is
explained, renders such objections beside the point.