The Text Is All We Have

Today’s story about the Justice Department obtaining two months’ worth of telephone records from the Associated Press, apparently without a warrant and without any sort of prior notice to the people or entity thus searched, gives me a good platform to respond (as promised) to fellow Ordinary Gentleman Tim Kowal’s cogent argument for “original public…

How do you interpret a constitution?

The biggest cause of confusion faced by Originalists—the folks who think the Constitution means what it originally did in the late 1700s—isn’t the one you’d probably guess at first.  You’d probably guess it has to do with how we can know what 18th century Americans were thinking.  And how can anyone know what Americans more than two and a quarter centuries ago thought “due process” was, or what a “reasonable search and seizure” was?  We can hardly get consensus on […]

How do you interpret a constitution?

The biggest cause of confusion faced by Originalists—the folks who think the Constitution means what it originally did in the late 1700s—isn’t the one you’d probably guess at first.  You’d probably guess it has to do with how we can know what 18th century Americans were thinking.  And how can anyone know what Americans more…

The judge as moral philosopher

Reviewing Supreme Court Justice Antonin Scalia and Bryan A. Garner’s Reading Law: The Interpretation of Legal Texts in the Claremont Review of Books, David Forte exposes Justice Scalia’s famous legal positivism as moral philosophy by another name.  “They call false,” Forte writes of Scalia and Garner, “the ‘notion that the quest in statutory interpretation is to do justice,’” and they, like Alexander Hamilton, prefer judges to be “‘bound down by strict rules and precedents.”  But judging, Forte pushes back, is […]

Our Unlovable Constitution

A new study by David S. Law and Mila Versteeg concludes that the world’s democracies are no longer emulating the U.S. Constitution, and are instead resorting to other templates that guarantee more “generic building blocks of global rights constitutionalism,” including “women’s rights,” “the right to social security, the right to health care, and the right…

The Constitutional Conservatism Newspeak

“Liberals are the true conservatives of this generation,” a growingly popular line of argument goes, “because liberals are the guardians of the new American tradition—the New Deal tradition—against the reactionary onslaught of the fake, revanchist ‘conservatives.’ True constitutional conservatism,” the argument continues, “would defend Supreme Court decisions of the past 70 years that approved centralized…

When Should Judges Defer?

Note – Will and I exchanged a few emails on judicial activism, cultural change, and the courts’ public legitimacy in the wake of the Iowa gay marriage ruling. We’ve published an edited version below: Will: I’ve enjoyed your and Dave’s posts on originalism – are you familiar with Rosenberg’s “hollow hope” argument against court-instigated progressive change?…