Academic

Bennett on Originalism

By Lawrence Solum

Robert Bennett (Northwestern University Law School) has posted Originalism: Lessons from Things that Go Without Saying (San Diego Law Review, Vol. 45, 2008) on SSRN.  Here is the abstract:

After setting the originalism "stage" and discussion of some of its tribulations, the article turns to the problem of constitutional silences. These come in many shadings, and the article concentrates on three that illustrate different sorts of problems: 1) the failure of the Guarantee Clause to provide a more precise definition of a "republican form of government"; 2) the deafening silence about any role for political parties in the nation's politics and governance; and 3) the absence of guidance about "discretion" to be exercised by presidential elections, which surfaces these days as the problem of the "faithless elector," one who votes in the electoral college contrary to pre-election commitment. These help illustrate how scant are the resources originalism will often bring to the enterprise of constitutional interpretation. The article is an adaptation of the 2008 Nathaniel L. Nathanson Memorial Lecture at the University of San Diego Law School.

Highly recommended.

Full post as published by Legal Theory Blog on November 11, 2008 (boomark / email).