Original intent

Abstract: Whatever the original intent, the introduction of the term ‘thought experiment’ has proved to be one of the great public relations coups of science writing. For generations of readers of scientific literature, the term has planted the seed of hope that the fragment of text they have just read is more than mundane. Because it was a thought experiment, does it not tap into that infallible font of all wisdom in empiricist science, the experiment? And because it was conducted in thought, does it not miraculously escape the need for the elaborate laboratories and bloated budgets of experimental science? These questions in effect pose the epistemological problem of thought experiments in the sciences: Thought experiments are supposed to give us information about our physical world. From where can this information come? One enticing response to the problem is to imagine that thought experiments draw from some special source of knowledge of the world that transcends our ordinary epistemic resources.

Abstract: Constitutional scholarship has deteriorated into a set of armed camps, with defenders of different theories of judicial review too often talking to their own supporters but not engaging their opponents. This book breaks free of the stalemate and reinvigorates the debate over how the judiciary should interpret the Constitution. Keith Whittington 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, he examines what it means to interpret a written constitution and how the courts should go about that task. He 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 critics 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. Whittington explores these criticisms, their potential threat to originalism, and how originalist theory might be reconstructed to address their concerns. In a non-dogmatic and readily understandable way, he explains how originalist methods can be reconciled with an appropriate understanding of legal interpretation and why originalism has much to teach all constitutional theorists. He also shows how originalism helps realize the democratic promise of the Constitution without relying on assumptions of judicial restraint. 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. With its detailed and wide-ranging explorations in history, philosophy, and law, this book is essential reading for anyone interested in how the Constitution ought to be interpreted and what it means to live under a constitutional government.

Abstract: The hallmarks of this authoritative text have been strengthened throughout: its clear exposition of judicial rulings and their significance, its even-handed discussion of larger trends in American constitutional history, and a broad approach that brings politics and social developments to bear on constitutional cases. The Seventh Edition also takes account of the major constitutional developments of the 1980s: the constitutional implications of divided government-situation in which rival parties respectively control the presidency and the Congress; the controversies over abortion, affirmative action, and issues of free speech; the general debate over original intent and constitutional change.

Abstract: When interpreting the Constitution, judges and commentators often invoke the “original intent of the framers” in support of their positions. Many claim that such an interpretive strategy is not only currently desirable, but indeed was the expectation of the Constitution’s drafters and early interpreters. In this Article, Professor Powell examines the historical validity of the claim that the framers of the Constitution expected future interpreters to seek the meaning of the document in the framers’ intent. He first examines the various cultural traditions that influenced legal interpretation at the time of the Constitution’s birth. Turning to the history of the Constitution’s framing, ratification, and early interpretation, Professor Powell argues that although early constitutional discourse did contain references to “original intention” and the “intent of the framers,” the meaning of such terms was markedly different from their current usage. He concludes that modern resort to the “intent of the framers” can gain no support from the assertion that such was the framers’ expectation, for the framers themselves did not believe such an interpretive strategy to be appropriate.