Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review
Posted: 1 Mar 2000
This book reconsiders the implications of the fundamental legal commitment to faithfully interpret our written Constitution. Making use of arguments drawn from American history, political philosophy, and literary theory, it examines what it means to interpret a written constitution and how the courts should go about that task. It concludes that when interpreting the Constitution, the judiciary should adhere to the discoverable intentions of the Founders.
Other originalists have also asserted that their approach is required by the Constitution but have neither defended that claim nor effectively responded to criticisms of their assumptions or their method. This book sympathetically examines the most sophisticated critiques of originalism based on postmodern, hermeneutic, and literary theory, as well as the most common legal arguments against originalists. The book explores these criticisms, their potential threat to originalism, and how originalist theory might be reconstructed to address their concerns. In a nondogmatic and readily understandable way, the book explains how originalist methods can be reconciled with an appropriate understanding of legal interpretation and why originalism has much to teach all constitutional theorists. It also shows how originalism helps realize the democratic promise of the Constitution without relying on assumptions of judicial restraint, sharply distinguishing between democracy and majoritarianism.
This book carefully examines both the possibilities and the limitations of constitutional interpretation and judicial review. It shows us not only what the judiciary ought to do, but what the limits of appropriate judicial review are and how judicial review fits into a larger system of constitutional government. It concludes that textual indeterminacy is an inescapable aspect of our constitutional inheritance, and one that has important implications for the practice of judicial review. In doing so, it points constitutional theory beyond an exclusive focus on judicial review, constitutional law, and textual interpretation and toward a broader consideration of political authority, institutional design, and constitutional development.
JEL Classification: K19, K40
Suggested Citation: Suggested Citation