The Law and Morals of Interpretation

12 Pages Posted: 16 Mar 2018 Last revised: 1 Jun 2018

Stephen E. Sachs

Duke University School of Law

Date Written: March 13, 2018

Abstract

Andrew Coan offers a fresh and forthright response to the long disagreement over constitutional interpretation. Instead of entering the debate between originalism and nonoriginalism, he proposes to settle it, through an amendment proclaiming nonoriginalism as the law of the land. Under the Coan Amendment, the entire Constitution would be construed "to accommodate the practical exigencies of human affairs and the evolving standards of decency that mark the progress of a maturing society." This Amendment, he writes, would "eliminat[e] a huge quantity of basically unproductive debate about the legal and moral necessity of originalism," thereby "redirect[ing]” that effort “to far more pressing matters of constitutional substance."

Coan offers his suggestion as a "thought experiment," not a "serious proposal." This is a good thing, because the substantive effect of his proposal would be unambiguously bad. But even as a thought experiment, it’s unclear how much the Amendment shows. The legal debate over the status of originalism can indeed be settled by new law. But the moral status of originalism -- and, indeed, of our law more generally -- is not so easily settled.

Keywords: law, morals, constitutional law, originalism, amendment, political obligation

JEL Classification: K1, K10, K4, K40

Suggested Citation

Sachs, Stephen E., The Law and Morals of Interpretation (March 13, 2018). Duke Journal of Constitutional Law & Public Policy, Vol. 13, No. 2, pp.103-114, 2018. Available at SSRN: https://ssrn.com/abstract=3139893

Stephen E. Sachs (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-8542 (Phone)

HOME PAGE: http://law.duke.edu/fac/sachs

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