The Language of Law and the Foundations of American Constitutionalismby Gary L. McDowell
Pub. Date: 06/28/2010
Publisher: Cambridge University Press
For much of its history, the interpretation of the United States Constitution presupposed judges seeking the meaning of the text and the original intentions behind that text, a process that was deemed by Chief Justice John Marshall to be “the most sacred rule of interpretation.” Since the end of the nineteenth century, a radically new understanding has… See more details below
For much of its history, the interpretation of the United States Constitution presupposed judges seeking the meaning of the text and the original intentions behind that text, a process that was deemed by Chief Justice John Marshall to be “the most sacred rule of interpretation.” Since the end of the nineteenth century, a radically new understanding has developed in which the moral intuition of the judges is allowed to supplant the Constitution’s original meaning as the foundation of interpretation. The Founders’ constitution of fixed and permanent meaning has been replaced by the idea of a “living” or evolving constitution. Gary L. McDowell refutes this new understanding, recovering the theoretical grounds of the original Constitution as understood by those who framed and ratified it. It was, he argues, the intention of the Founders that the judiciary must be bound by the original meaning of the Constitution when interpreting it.
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Table of ContentsIntroduction: the politics of original intention; 1. The Constitution and the scholarly tradition: recovering the Founders' Constitution; 2. Nature and the language of law: Thomas Hobbes and the foundations of modern constitutionalism; 3. Language, law, and liberty: John Locke and the structures of modern constitutionalism; 4. The limits of natural law: modern constitutionalism and the science of interpretation; 5. The greatest improvement on political institutions: natural rights, written constitutions and the intention of the people; 6. Chains of the Constitution: Thomas Jefferson, James Madison and the political metaphysics of strict construction; 7. The most sacred rule of interpretation: John Marshall, originalism, and the limits of judicial power; 8. The same yesterday, to-day, and forever: Joseph Story and the permanence of constitutional meaning; Epilogue: the moral foundations of originalism.
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Must a United State have geographic borders? Can a State be of ideological boundaries, crafted by a coalition of sovereign and like-minded individuals - able to challenge and take its rightful place as the 51st United State? Having read most of Robert Bork's work since the late 80s, I recognized years ago that judicial activism posed a graver threat to the security of this nation than any other form of "jihad." McDowell characterizes the senatorial insurgency of the Bork fiasco as the first battle in the "war" to preserve the Constitution. He points out that the "intellectual roots" of judicial activism are traced to three innovations: One, the "case method of instruction" which replaced "antecedent principles;" Two, the hiring of legal Darwiniac heretics like Woodrow Wilson, Louis Brandeis and Elena Kagan to teach law, as opposed to genuine practitioners steeped in original intent, (e.g. Rutherford, Blackstone, Marshall, Story et al.) And three, the rise of "law reviews" (e.g. the Harvard Law Review) as the conduit for this judicial heresy. From Hobbes, through Locke, to Blackstone and beyond, McDowell analyzes the ramshackle and cantilevered barnacles of wayward precedence, isolating their fasteners for extraction and demolition. "Law from precedence should be altogether exploded. What people in their senses would make judges depositaries of the law?" (p. 231.) "Such arbitrariness was simply 'repugnant to the principles of free government." (p. 249.) "Thus judges are not free to import new meaning into old words, or to transform the Constitution by construction." (p.250.) The notion that liberal executives should be allowed to adulterate our courts with activist judges and their latex penumbras, as the apostate, Goober Grahamnesty has said, is nothing less than Constitutional heresy. "THAT'S RIGHT, I SAID IT!!!" It is interesting to note that the provision for infanticide (i.e. Roe v Wade) had metastasized from a desire to curb yellow journalism and the paparazzi. (p. 389.) "Meaning should not be derived from the prejudices or philosophic understanding of the interpreter." (p. 203.) "The appellate power of the Supreme Court of the United States, does not extend to this [state] court." (p. 287.) "Thus is legislative arbitrariness replaced by judicial arbitrariness," (p. 388.) "To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should." --- Robert Bork, 1990. --- "It is no longer assumed to be the province of the judiciary either to quibble away or evade the mandates of the legislature." --- Henry Campbell Black, 1896. --- "So give me reason, To prove me wrong, To wash this memory clean," --- "New Divide," Linkin Park. ---