Academic

Greene on District of Columbia v. Heller

By Lawrence Solum

Jamal Greene (Columbia University - Law School) has posted Heller High Water? The Future of Originalism (Harvard Law & Policy Review, Volume 3) on SSRN. Here is the abstract:

This Article considers the future of originalism in the wake of the Supreme Court?s 2008 decision in District of Columbia v. Heller. It argues that, although Heller is in many ways a triumph for proponents of originalism, it might also represent a high water mark for the doctrine and for the political movement that supports it. There is little reason to believe that the cases of relative first impression that originalism feeds on will be readily available in the near future, and the politics of the Court and of the country do not augur the appointment of additional originalist judges. These observations recommend that progressive advocates focus on availing themselves of the nation?s ethical shift to themes of change and mutual responsibility, so as to emphasize the Constitution?s dynamic future rather than its static past.

And from the text:

[T]he intellectual presuppositions of the Revolutionary generation fit quite comfortably with the notion that the original of the enacted text should be dispositive. The Framers were what one might call dated textualists; they intended the express meaning of the Constitution?s words to hold sway for later interpreters, regardless of social change.10

That the founding generation shared this interpretive premise with many modern originalists does not in itself link the present originalism movement to ancient hermeneutic tradition. Many of the great contemporary debates between originalists and their opponents do not reflect differences over original meaning so much as differences over present-day application. As Ronald Dworkin observed in his well known colloquy with Justice Scalia, many of the Constitution?s trouble spots, such as ?cruel and unusual punishment? and ?due process of law,? refer to principles that the founding generation?drafters and audiencealike?would have considered compatible with dynamic application.11 There is little evidence, for example, that a late eighteenth century reasonable person would have understood ?liberty? as incapable of encompassing a right to have an abortion.12

Nonetheless, we should hesitate before ascribing to founding-era Americans a Dworkinian view of the the level of generality at which future interpreters should understand constitutional text. Those Americans would not have contemplated?nor can they be presumed to have consented to?an evolving Constitution that safeguards an ever expanding set of individual rights against the government.

Highly recommended!

Full post as published by Legal Theory Blog on June 09, 2009 (boomark / email).