All That Is Liquidated Melts into Air: Five Meta-Interpretive Issues
Barry Law Review, Forthcoming
26 Pages Posted: 28 Jan 2019
Date Written: January 24, 2019
The promise of originalism is that it helps us to fix constitutional meaning and constrain constitutional decision-makers. There are significant constitutional questions that originalism can help resolve, at least to the extent that constitutional decision-makers buy in to originalism. However, even assuming that originalism is normatively desirable, there are certain issues that are fundamental to constitutional decision-making but that originalism cannot help us resolve. The Framers were hopelessly divided on them, and they may not be susceptible to Madisonian “liquidation.” That is, at least some of these issues still generate live controversies even though some of them seem to have been resolved by adjudication, legislation or long-standing practice.
This paper identifies five such issues, which seem the most fundamental. These issues are “meta-interpretive” because they are subjects of interpretation while also providing the framework for resolving other interpretive issues. That is, they establish the parameters within which constitutional decision-makers can resolve particular interpretive issues. Those who follow debates about and within originalist theory are familiar with the notion that original meaning sometimes runs out. At that point, even originalists concede, constitutional decision-makers resort to modalities of constitutional interpretation other than originalism. My unique claim here is that original meaning runs out very early in the process and that originalist interpretation therefore takes place within a non-originalist meta-interpretive frame.
Keywords: Originalism, Living Constitutionalism, Constitutional Interpretation, Constitutional Law, Judicial Review, Judicial Supremacy, Enumeration, Congressional Powers, Executive Powers, Vesting Clause Thesis, Commerce Clause, State Sovereignty, Popular Sovereignty
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