Constitutional Originalism: A Debate

About the Book

Problems of constitutional interpretation have many faces, but much of the contemporary discussion has focused on what has come to be called "originalism." The core of originalism is the belief that fidelity to the original understanding of the Constitution should constrain contemporary judges. As originalist thinking has evolved, it has become clear that there is a family of originalist theories, some emphasizing the intent of the framers, while others focus on the original public meaning of the constitutional text. This idea has enjoyed a modern resurgence, in good part in reaction to the assumption of more sweeping power by the judiciary, operating in the name of constitutional interpretation. Those arguing for a "living Constitution" that keeps up with a changing world and changing values have resisted originalism. This difference in legal philosophy and jurisprudence has, since the 1970s, spilled over into party politics and the partisan wrangling over court appointments from appellate courts to the Supreme Court. In Constitutional Originalism, Robert W. Bennett and Lawrence B. Solum elucidate the two sides of this debate and mediate between them in order to separate differences that are real from those that are only apparent. In a thorough exploration of the range of contemporary views on originalism, the authors articulate and defend sharply contrasting positions. Solum brings learning from the philosophy of language to his argument in favor of originalism, and Bennett highlights interpretational problems in the dispute-resolution context, describing instances in which a living Constitution is a more feasible and productive position. The book explores those contrasting positions, to be sure, but also uncovers important points of agreement for the interpretational enterprise. This provocative and absorbing book ends with a bibliographic essay that points to landmark works in the field and helps lay readers and students orient themselves within the literature of the debate.

Table of Contents:
Preface We Are All Originalists Now Lawrence B. Solum What Is Originalism? Should We Be Originalists? Originalism and Living Constitutionalism Originalism and the Living American Constitution Robert W. Bennett Originalism and Living Constitutionalism Wrestling with the Troubles of Originalism Implications for Living Constitutionalism Living with a Living Constitution The Failure of Originalism as Restraint Living with Originalism A Response by Lawrence B. Solum Can Original Meaning Constrain? The Levels-of-Generality Pseudoproblem The Role of Values in Constitutional Construction Dead Hands Transitions and Precedent Original Intent Revisited Originalism and Politics Are We All Living Constitutionalists Now? A Response by Robert W. Bennett The Interpretive Role of Nonoriginalism in Solum's Scheme Extent of Liveliness in Solum's Constitutional Law and Bennett's Normative Choices in Interpretation Ordinary or Technical Meaning The Limits of Constraint Based on Language Notes Suggested Readings Index

About the Author :

Robert W. Bennett is Nathaniel L. Nathanson Professor of Law at Northwestern University and former dean of the school. He is the author of Talking It Through: Puzzles of American Democracy, also from Cornell, and Taming the Electoral College. Lawrence B. Solum is John E. Cribbet Professor of Law, Professor of Philosophy, and Associate Dean for Faculty and Research at the University of Illinois College of Law. He has written widely in jurisprudence and constitutional theory. His recent articles have appeared in the Harvard Law Review, the Virginia Law Review, and elsewhere. He is also the principal author of the Legal Theory Blog.

Review :
"In their new book, Lawrence Solum and Robert Bennett build state-of-the-art cases for the two main schools of constitutional interpretation. Each contributes a generous essay presenting the merits of his own approach and offering a thoughtful rebuttal to the other's argument. If you've been seeking a concise introduction to the central debate in American constitutional theory, this is the book for you."-Gerald J. Russello, City Journal (Summer 2011) "Solum and Bennett have produced a valuable book, particularly for students unfamiliar with the originalism versus 'living Constitution' debate and the literature it has spawned... Rather than rehash their theoretical differences, the debaters thoughtfully weigh each other's arguments and acknowledge common ground, particularly regarding the limits of originalism in times of political or moral crisis and, more generally, the use of precedent in judicial interpretation... This is an excellent resource; it includes an outstanding bibliography, and the authors discuss most of the true classics and key scholars in the field of constitutional interpretation. Summing up: Highly recommended." -Choice (February 2012) "In a highly readable discussion, these two eminent legal scholars bring sophistication and nuanced insights to a perennially controversial topic." -Paul Brest, Dean Emeritus, Stanford Law School "Constitutional Originalism is unique among books about its subject in adopting the debate format. It is refreshing to see a discussion of the connections between originalism and living constitutionalism developed by two authors who approach these issues from different perspectives but also find some common ground."-Keith E. Whittington, William Nelson Cromwell Professor of Politics, Princeton University, author of Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review "Constitutional Originalism is a must-read for anyone interested in arguments over how to understand the Constitution. In a highly sophisticated yet immensely readable point-counterpoint, Robert W. Bennett and Lawrence B. Solum offer powerful arguments for and against interpreting the Constitution on the basis of its original meaning. Wherever one stands on the question, this book provides challenging new insights from the opposing view. The debate over the merits of originalism is gaining new prominence in American law and politics, and no one on either side of it can afford to ignore this contribution."-Michael D. Ramsey, University of San Diego School of Law "Anyone interested in how the Constitution should be interpreted must read this fascinating debate between Lawrence B. Solum, a leading theorist of originalism, and Robert W. Bennett, one of originalism's most fervent critics. As in a courtroom, after each clearly and respectfully presents his case, the reader gets to be the jury."-Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, author of Restoring the Lost Constitution: The Presumption of Liberty