Comments on: Constitutional Theory Does Matter

By: Barber & Fleming vs. Fish and a Comment on Constitutional Theory & the Philosophy of Language (Update: Plus Comments from Sot Barber & Jim Fleming) | Org Legal

Sun, 03 Feb 2008 05:04:12 +0000

[...] Stanley Fish recently posted Does Constitutional Theory Matter on his New York Times Think Again column. Fish’s column ranged over many issues, but one target was Constitutional Interpretation: The Basic Questions, by Sot Barber and Jim Fleming and recently featured on the Legal Theory Bookworm. Barber and Fleming have responded to Fish on OUP Blog with a post entitled Constitutional Theory Does Matter: [...]

By: Barber & Fleming vs. Fish and a Comment on Constitutional Theory & the Philosophy of Language (Update: Plus a Comment from Sot Barber) | Org Legal

Sat, 02 Feb 2008 05:13:29 +0000

By: Sotirios Barber

Sotirios Barber — Sat, 02 Feb 2008 05:08:32 +0000

A response to Simon:

In chap 6 of our book, Fleming and I show that the “original public meaning” version of originalism is a disguised form of the old originalism that Scalia and many others want to disclaim. Chap 2 exposes Rehnquist’s originalism through an analysis of his famous article in the 1976 Texas Law Review, “The Notion of a Living Constitution.” That, despite his occasional talk of framers’ intent, Rehnquist was no true originalist is no surprise. We show in chaps 6 and 7 that no one can be a true originalist because no form of originalism can work — except that form which is equivalent to the philosophic approach, the antithesis of “originalism” as usually understood.

By: C. Ikehara

C. Ikehara — Fri, 01 Feb 2008 08:48:34 +0000

Concerning ‘original intent’, the following article may be of interest:

http://hnn.us/roundup/entries/30559.html

By: Simon

Simon — Thu, 31 Jan 2008 20:27:38 +0000

If the thesis is to rejoin “Scalia’s theory of original intention” then the thesis attacks a strawman – Scalia has explained so often that he must be weary of doing so that it is the original public meaning of the Constitution that controls, just as it does in statutory construction, not the subjective original intentions of the drafters. And I think it’s a stretch to call Rehnquist an originalist of either stripe – I think he would not have claimed that mantle, and his jurisprudence doesn’t bear out the claim (one thinks – to take only recent examples – of the Apprendi-Booker line of cases and Kyllo, which saw both the court’s originalists join the liberal bloc leaving Rehnquist in dissent).