Constructing the Original Scope of Constitutional Rights
88 Fordham Law Review Online, 2019
15 Pages Posted: 2 Jan 2020 Last revised: 17 Jan 2020
Date Written: December 10, 2019
In this solicited response to Ingrid Wuerth's "The Due Process and Other Constitutional Rights of Foreign Nations," I explain and justify Wuerth's methodology for constructing the original scope of constitutional rights. The original understanding of the Constitution, based on text and historical context, is a universally acknowledged part of constitutional law today. The original scope of constitutional rights — who was entitled to them, where they extended, and so on — is a particularly difficult question that requires a measure of construction based on the entire historical context. Wuerth rightly proceeds one right at a time with a careful consideration of the legal history of the judicial rights of foreign states.
Keywords: constitutional law, constitutional interpretation, originalism, legal history, foriegn affairs, sovereign immunity, civil procedure, due process, notice
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