The Language of Law and the Foundations of American Constitutionalism

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Overview

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 The Founders' constitution of fixed and permanent meaning has been replaced by the idea of a "living" or evolving constitution.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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Editorial Reviews

From the Publisher
"In this fine book, Gary McDowell shows that the Constitution is our fundamental law-not our master but our guide and mentor. Only at our peril do we try to make it our servant."
- Harvey Mansfield, Harvard University

"Erudite and lucid: McDowell's book is a must-read for those who wish to understand the philosophical and linguistic roots of the originalist tradition of constitutional interpretation."
- R. Kent Newmyer, University of Connecticut School of Law

"This book adds a major dimension of depth to the case for guiding judicial interpretation of the Constitution by the original intent of the framers. McDowell articulates a deeply thought provoking meditation, informed by a fertile understanding of key foundations for originalism articulated by major figures in political philosophy, in the common law, and among the Founders themselves who shaped the theorizing that informs our constitutional order."
- Thomas Pangle, University of Texas at Austin

"For several decades, Gary McDowell has been one of our most brilliant and learned students of law and political philosophy. This book is his summa, a profound defense of originalism as a moral Constitutional philosophy, a brilliant discourse on the framers and their philosophical forbears and successors, and a powerful handbook of strategy in what McDowell calls 'the contemporary war for the Constitution.' This work is essential reading for anyone who cares about the Supreme Court and the Constitution, but it is more. It is, simply stated, one of this generation's most important contributions toward preserving the rule of law itself."
- Stephen Presser, Northwestern University School of Law

"In this timely book, the case against the so-called 'living' constitution is so powerfully argued and so clearly presented that it cannot be ignored."
- Gordon S. Wood, Brown University

"Nonetheless, I suspect that The Language of The Law will be well received by conservatives. McDowell will, one might say, successfully preach to the choir."
- Stephen M. Feldman, Professor of Law at University of Wyoming

"With The Language of Law and the Foundations of American Constitutionalism, Gary L. McDowell provides what will probably stand for some time as the most thorough historical account in defense of the originalist approach to the Constitution, exemplified by Antonin Scalia and Robert Bork. In elegant and often-insightful fashion, McDowell surveys the key Enlightenment thinkers who influenced the American Founders, then considers the way those who created and first applied the Constitution thought it should be interpreted."
- Martin S. Flaherty, The Journal of American History

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Product Details

  • ISBN-13: 9780521192897
  • Publisher: Cambridge University Press
  • Publication date: 6/28/2010
  • Pages: 428
  • Product dimensions: 6.20 (w) x 9.40 (h) x 1.20 (d)

Meet the Author

Gary L. McDowell is a Professor in the Jepson School of Leadership Studies at the University of Richmond, where he holds the Tyler Haynes Interdisciplinary Chair of Leadership Studies, Political Science, and Law. He is the author or editor of ten books, including Equity and the Constitution: The Supreme Court, Equitable Relief and Public Policy; Curbing the Courts: The Constitution and the Limits of Judicial Power; Justice vs. Law: Courts and Politics in American Society (with Eugene W. Hickok, Jr.); and Friends of the Constitution: Writings of the 'Other' Federalists (edited with Colleen Sheehan). In addition to his teaching appointments, he has served as the Director of the Office of the Bicentennial of the Constitution at the National Endowment for the Humanities, Associate Director of Public Affairs at the United States Department of Justice and chief speechwriter to United States Attorney General Edwin Meese III, and Director of the Institute of United States Studies in the University of London.

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Table of Contents

Introduction: 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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  • Posted December 28, 2010

    more from this reviewer

    Judicial Jihad

    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. ---

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    Posted July 4, 2011

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