'This'

14 Pages Posted: 27 Apr 2022 Last revised: 9 May 2022

See all articles by Cass R. Sunstein

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Date Written: April 25, 2022

Abstract

The “supreme law of the land” includes “This Constitution,” and federal officers are “bound, by oath or affirmation, to support this Constitution.” In recent years, some people have argued that these words have strong implications for constitutional interpretation: They require oath-takers to be originalists and perhaps to follow the “original public meaning,” properly understood. An understanding of this argument requires an exploration of the diverse forms and conceptions of originalism, which raise puzzles of their own. Whether or not we embrace some form of originalism, the broader point is this: The claim that the term “this Constitution” mandates a contested theory of interpretation, including a contested form of originalism, belongs in the same category with many other efforts to resolve controversial questions in law by reference to the supposed dictate of some external authority. Whether maddening or liberating, there is nothing that communication just is, nor is there any such dictate. The choice is ours.

Keywords: originalism, living constitution, semantic original, original public meaning

Suggested Citation

Sunstein, Cass R., 'This' (April 25, 2022). Harvard Public Law Working Paper No. 22-08, Available at SSRN: https://ssrn.com/abstract=4093192 or http://dx.doi.org/10.2139/ssrn.4093192

Cass R. Sunstein (Contact Author)

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Harvard University - Harvard Kennedy School (HKS) ( email )

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