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For much of its history, the interpretation of the United States Constitution presupposed judges seeking the meaning of the text and the original intentions behind that text, a process that was deemed by Chief Justice John Marshall to be “the most sacred rule of interpretation.” Since the end of the nineteenth century, a radically new understanding has developed in which the moral intuition of the judges is allowed to supplant the Constitution’s original meaning as the foundation of interpretation. The Founders’ constitution of fixed and permanent meaning has been replaced by the idea of a “living” or evolving constitution. Gary L. McDowell refutes this new understanding, recovering the theoretical grounds of the original Constitution as understood by those who framed and ratified it. It was, he argues, the intention of the Founders that the judiciary must be bound by the original meaning of the Constitution when interpreting it.
- Argues the controversial point that the loss of the Founders' Constitution is attributable not just to policy-making judges, but nearly as much to the scholarly community, implicating specific figures in legal history and law
- Approaches the question in a novel way by examining the common philosophical ground between the so-called strict constructionists and loose constructionists during the early years of the republic, demonstrating that both schools were originalists in their interpretive approaches
- Presents evidence that originalism has always been, until relatively recently, the received tradition of interpretation
Cambridge University Press
Cambridge; New York
constitutional law, founders' constitution, law language
Jepson School of Leadership Studies
McDowell, Gary L. The Language of Law and the Foundations of American Constitutionalism. Cambridge: Cambridge University Press, 2010.