Jon Rowe has an excellent post at Positive Liberty looking at the views of Jack Balkin and Akhil Amar, one a "living constitutionalist" and the other a "liberal originalist". He makes the important point that rejecting the Bork/Scalia version of originalism does not necessarily make one an advocate of "living constitutionalism". Liberal originalism (liberal in the classical sense, not the modern political sense) reaches many of the same results but for different reasons. Rowe, Sandefur and I are all advocates of liberal originalism. In fact, I just finished rereading Sandefur's brilliant article on liberal originalism in the Harvard Journal of Law and Public Policy last year. I hope at some point he is able to make that article available publicly.
- Log in to post comments
In order to arrive at a coherent and hermeneutically sound reading of the Constitution, one that is representative of the application of the document and all of its amendments in the 21st century(and we are talking about how it works in the 21st century-the here and now of what it all means), one must interpret texts. The act of interpretation is necessarily overt and public too. For me the most glaring problem of the Bork/Scalia Federalist Society position is that it wishes to ignore the existence of its interpretive processes hoping that everyone else will follow suit. If we have learned anything from the continental philosophers it is that texts are constantly and continuously interpreted, and that it is oft disingenous to ascribe intentionality to the thinking and minds of the authors. Interpreting the works of thinkers 200+ years ago requires each of us to clearly state our methodologies and to consistently apply them across the spectrum of the works even if there are (as is humanly real) inconsistencies and contradictions. We will never know exactly what Madison was thinking, while sitting in his chair in the stuffy confines of an oppressive humidity of Philly, but we do have volumes of his words upon which we can apply our philosophical mind's eyes. WE cannot know what a blacksmith was thinking when he voted to ratify the Constitution and first ten Amendments in North Carolina, nor do we have his written record to interpret, but we do know, archivally through some interesting source materials, that he voted and did so in the affirmative.
What i have always appreciated about Ed's (and friends) process, whatever he prefers to call it (a symbolic referent that may or may not hold for another generation--given his need to qualify the use of the term "liberal" already), it does maintain a consistent hermeneutic that can be applied to any number of aspects of the document in question and produce reasonable, rational, clear opinions. Is that not what we really are asking for from our leaders and courts?