Constitutional Theory and Interpretation

Current Issues

"Simple-Minded Originalism."  Professor Larry Alexander defends this style of originalism in this concise piece recently posted on ssrn.  The paper is an excellent introduction to the issues and arguments surrounding originalism.  Link to it through ssrn here.

Originalism is Bunk.  Professor Mitch Berman posted a new draft of Originalism is Bunk on ssrn on July 14, 2008; link here.  Professor Solum of the Legal Theory Blog (link here) describes the piece as "a must read for anyone interested in contemporary constitutional theory."

OT 2007 Round-Ups.  Both the American Constitution Society and the Federalist Society held their OT 2007 Supreme Court reviews on July 1, 2008.  Link to the ACS program here; link to the Federalist Society program here.

The Second Amendment, Heller, and Constitutional Interpretation.  The U.S. Supreme Court ruled in District of Columbia v. Heller that the Second Amendment protects an individual right to possess a firearm, unconnected with service in a militia.  Justice Scalia's opinion for the majority and Justice Stevens's and Justice Breyer's separate dissents cover a wide range of interpretive techniques and are well worth studying for guidance as gun-rights advocates now challenge the full range of local laws under the Second Amendment in the federal district courts.  Read the full--and, well, let's say thorough--opinion here.  Commentary abounds; here are two blog posts:  Jack Rakove, guest blogging at Balkinization here; Mark Graber at Balkinization here.  Link to the spate of new suits at the SCOTUS blog here.  UPDATE (July 24, 2008):  Check out Professor Jeffrey Shaman's piece, The Wages of Originalist Sin:  District of Columbia v. Heller, recently posted on ssrn, for a thoughtful critique of both Scalia's and Stevens's appeals to original meaning, and a defense of Breyer's balancing; link here.  UPDATE (August 22, 2008):  Judge Richard Posner criticized the majority's decision and advocated "looseness."  Posner quotes Blackstone, who describes:  "the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable[, i.e.,] the words, the context, the subject matter, the effects and consequences, or the spirit and reason of the law."  Posner writes that the Constitution "has from the beginning been loosely construed so as not to become a straightjacket or a suicide pact.  The older the constitutional provision and the more the environment has changed since enactment, the more appropriate is the method of loose construction."  Link here for the full article.

Justice Scalia and Originalism.  Justice Scalia recently discussed his originalism with Charlie Rose.  Link here.  (Check especially the first 17 minutes or so.  Justice Scalia briefly discusses Boumediene, the 2008 Guantanamo detainee and habeas case, at 12:20; he briefly discusses Bush v. Gore at 17:00.)

A Reader's Guide to Semantic Originalism.  Professor Solum posted an updated version of his article, A Reader's Guide to Semantic Originalism and a Reply to Professor Griffin, on ssrn.  The article provides a nice introduction to semantic originalism and an overview of recent blog exchanges between Professors Solum and Griffin on semantic originalism.  Link to the article on ssrn here.  Link to Professor Solum's Semantic Originalism (updated July 11, 2008) here.

ACS Panel on Constitutional Interpretation.  Click here for an oustanding panel discussion on Our Enduring Constitution from the 2008 American Constitution Society National Convention.