The Language of Law and the Foundations of American Constitutionalism

The Language of Law and the Foundations of American Constitutionalism

by Gary L. McDowell
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The Language of Law and the Foundations of American Constitutionalism by Gary L. McDowell

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 The Founders' Constitution of fixed and permanent meaning has been replaced by the idea of a 'living' or evolving constitution.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

Product Details

ISBN-13: 9780511852404
Publisher: Cambridge University Press
Publication date: 06/28/2010
Sold by: Barnes & Noble
Format: NOOK Book
Sales rank: 1,036,400
File size: 677 KB

About 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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The Language of Law and the Foundations of American Constitutionalism 3 out of 5 based on 0 ratings. 2 reviews.
Anonymous More than 1 year ago
Tony_Pipia More than 1 year ago
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. ---