Abstract

http://ssrn.com/abstract=2340147
 


 



The New Originalism and the Foreign Affairs Constitution


Andrew Kent


Fordham University School of Law

October 17, 2013

Fordham Law Review, Vol. 82, 2013
Fordham Law Legal Studies Research Paper No. 2340147

Abstract:     
This symposium essay addresses how the new originalism – focused on the objective semantic meaning that the Constitution’s text would have had to members of the adopting generation – grapples with particular interpretive issues raised in the constitutional foreign affairs area. I first suggest that new originalism struggles with background norms of the common law or the law of nations which were understood by some members of the Founding generation to implicitly qualify or restrict parts of the constitutional text. This issue is omnipresent in foreign affairs law because courts, executive officials, and other interpreters must decide whether the boundaries of the Constitution’s broadly written protections for life, liberty, and property extend to domains such as wartime or extraterritorial activity by the U.S. government, or to persons beyond the paradigm case of U.S. citizens within the United States. The Constitution’s meaning is significantly altered depending on whether unwritten general law is allowed to undercut textually broad rights. Second, I suggest that the exacting textualism practiced by many new originalists might only imperfectly understand certain aspects of the foreign affairs Constitution. This is because some of it was drafted hastily and poorly, certain important topics were not addressed at all, and some Founding-era interpreters understood the foreign affairs portions of the Constitution in a holistic manner focused on purpose and structure, instead of parsing text in the manner of new originalism. This potentially large gap between results reached by new originalism and the expectations and practices of the Founders problematizes new originalism’s claim to be based on the objective public meaning of the text to the adopting generation.

Number of Pages in PDF File: 25

Keywords: originalism, textualism, foreign affairs, domain of the Constitution, unenumerated congressional powers, war powers

Accepted Paper Series





Download This Paper

Date posted: October 15, 2013 ; Last revised: March 20, 2014

Suggested Citation

Kent, Andrew, The New Originalism and the Foreign Affairs Constitution (October 17, 2013). Fordham Law Review, Vol. 82, 2013; Fordham Law Legal Studies Research Paper No. 2340147. Available at SSRN: http://ssrn.com/abstract=2340147

Contact Information

Andrew Kent (Contact Author)
Fordham University School of Law ( email )
140 West 62nd Street
New York, NY 10023
United States
Feedback to SSRN


Paper statistics
Abstract Views: 221
Downloads: 69
Download Rank: 201,162

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo7 in 0.343 seconds