This Article draws on empirical analysis, history, and economic theory to show that corporations have begun to displace individuals as direct beneficiaries of the First Amendment and to outline an argument that the shift reflects economically harmful rent seeking. The history of corporations, regulation of commercial speech, and First Amendment case law is retold, with an emphasis on the role of constitutional entrepreneur Justice Lewis Powell, who prompted the Supreme Court to invent corporate and commercial speech rights. The chronology shows that First Amendment doctrine long post-dated both pervasive regulation of commercial speech and the rise of the U.S. as the world’s leading economic power – a chronology with implications for originalists, and for policy. Supreme Court and Courts of Appeals decisions are analyzed to quantify the degree to which corporations have displaced individuals as direct beneficiaries of First Amendment rights, and to show that they have done so recently, but with growing speed since Virginia Pharmacy, Bellotti, and Central Hudson. Nearly half of First Amendment challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals, and the trend-line is up. Such cases commonly constitute a form of corruption: the use of litigation by managers to entrench reregulation in their personal interests at the expense of shareholders, consumers, and employees. In aggregate, they degrade the rule of law, rendering it less predictable, general and clear. This corruption risks significant economic harms in addition to the loss of a republican form of government.
{"title":"Corporate Speech and the First Amendment: History, Data, and Implications","authors":"John C. Coates, IV","doi":"10.2139/ssrn.2566785","DOIUrl":"https://doi.org/10.2139/ssrn.2566785","url":null,"abstract":"This Article draws on empirical analysis, history, and economic theory to show that corporations have begun to displace individuals as direct beneficiaries of the First Amendment and to outline an argument that the shift reflects economically harmful rent seeking. The history of corporations, regulation of commercial speech, and First Amendment case law is retold, with an emphasis on the role of constitutional entrepreneur Justice Lewis Powell, who prompted the Supreme Court to invent corporate and commercial speech rights. The chronology shows that First Amendment doctrine long post-dated both pervasive regulation of commercial speech and the rise of the U.S. as the world’s leading economic power – a chronology with implications for originalists, and for policy. Supreme Court and Courts of Appeals decisions are analyzed to quantify the degree to which corporations have displaced individuals as direct beneficiaries of First Amendment rights, and to show that they have done so recently, but with growing speed since Virginia Pharmacy, Bellotti, and Central Hudson. Nearly half of First Amendment challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals, and the trend-line is up. Such cases commonly constitute a form of corruption: the use of litigation by managers to entrench reregulation in their personal interests at the expense of shareholders, consumers, and employees. In aggregate, they degrade the rule of law, rendering it less predictable, general and clear. This corruption risks significant economic harms in addition to the loss of a republican form of government.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"32 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68206955","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Do for-profit corporations have a right to religious liberty? This question was before the Supreme Court for the first time in a challenge to the Affordable Care Act’s “contraception mandate.” According to Burwell v. Hobby Lobby Stores, Inc., the answer is yes: for-profit corporations are “persons” entitled to religious exemptions under the Religious Freedom Restoration Act.This Article argues that there is no principled basis for granting religious liberty exemptions to for-profit corporations. For-profit corporations do not possess the inherently human characteristics that justify religious exemptions for individuals. For-profit corporations also lack the unique qualities that justify exemptions for religious associations such as churches. Finally, corporate religious liberty risks trampling on the employment rights and religious liberty of individual employees.
盈利性公司有宗教自由的权利吗?在对《平价医疗法案》(Affordable Care Act)“避孕授权”的挑战中，这个问题首次出现在最高法院面前。根据Burwell诉Hobby Lobby Stores, Inc案，答案是肯定的:根据《宗教自由恢复法案》，营利性公司是有权享有宗教豁免的“个人”。本文认为，对营利性公司给予宗教自由豁免是没有原则依据的。以营利为目的的公司不具备为个人的宗教豁免辩护的固有人性特征。以营利为目的的公司也缺乏为教会等宗教组织提供豁免的独特品质。最后，企业的宗教自由可能会践踏雇员个人的就业权利和宗教自由。
{"title":"Corporate Religious Liberty","authors":"C. M. Corbin","doi":"10.2139/SSRN.2384963","DOIUrl":"https://doi.org/10.2139/SSRN.2384963","url":null,"abstract":"Do for-profit corporations have a right to religious liberty? This question was before the Supreme Court for the first time in a challenge to the Affordable Care Act’s “contraception mandate.” According to Burwell v. Hobby Lobby Stores, Inc., the answer is yes: for-profit corporations are “persons” entitled to religious exemptions under the Religious Freedom Restoration Act.This Article argues that there is no principled basis for granting religious liberty exemptions to for-profit corporations. For-profit corporations do not possess the inherently human characteristics that justify religious exemptions for individuals. For-profit corporations also lack the unique qualities that justify exemptions for religious associations such as churches. Finally, corporate religious liberty risks trampling on the employment rights and religious liberty of individual employees.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"881 1","pages":"277-308"},"PeriodicalIF":0.0,"publicationDate":"2015-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68165382","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2015-01-01DOI: 10.1017/CBO9781316015407.007
G. Thomas
{"title":"The Civic Dimensions of American Constitutionalism","authors":"G. Thomas","doi":"10.1017/CBO9781316015407.007","DOIUrl":"https://doi.org/10.1017/CBO9781316015407.007","url":null,"abstract":"","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"30 1","pages":"61"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CBO9781316015407.007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57119882","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
What is the connection, if any, between the external perspective of the historian or political scientist and the internal perspective of lawyers and judges? That is the puzzle for constitutional law posed by Charles Beard’s classic, An Economic Interpretation of the Constitution of the United States (1913). Beard challenges us either to reconcile our external and internal perspectives on constitutionalism, or else conceivably to declare them irreconcilable.I begin by showing that standard approaches to constitutional adjudication – originalism and Dworkinian moralism – are resolutely internal and thus have little use for the external standpoint of Beardian scholarship. I then describe a strategy of reconciliation offered by Justice Holmes, one that connects external and internal perspectives by means of a nonideal theory of constitutional judging under political constraints. The theory holds that the rational judge chooses the course of action that, at lowest possible cost, adjusts constitutional law and policy to match “the actual equilibrium of force in the community – that is, conformity to the wishes of the dominant power[].” In this framework, Beardian scholarship offers external analysis of the shape and force of the political constraints that the Holmesian judge should take into account when making constitutional law. External Beardian scholarship helps to delineate the feasible political options or possibilities for constitutional law, a critical datum from the internal but nonideal perspective of the Holmesian judge.
{"title":"Beard and Holmes on Constitutional Adjudication","authors":"Adrian Vermeule","doi":"10.2139/SSRN.2375271","DOIUrl":"https://doi.org/10.2139/SSRN.2375271","url":null,"abstract":"What is the connection, if any, between the external perspective of the historian or political scientist and the internal perspective of lawyers and judges? That is the puzzle for constitutional law posed by Charles Beard’s classic, An Economic Interpretation of the Constitution of the United States (1913). Beard challenges us either to reconcile our external and internal perspectives on constitutionalism, or else conceivably to declare them irreconcilable.I begin by showing that standard approaches to constitutional adjudication – originalism and Dworkinian moralism – are resolutely internal and thus have little use for the external standpoint of Beardian scholarship. I then describe a strategy of reconciliation offered by Justice Holmes, one that connects external and internal perspectives by means of a nonideal theory of constitutional judging under political constraints. The theory holds that the rational judge chooses the course of action that, at lowest possible cost, adjusts constitutional law and policy to match “the actual equilibrium of force in the community – that is, conformity to the wishes of the dominant power[].” In this framework, Beardian scholarship offers external analysis of the shape and force of the political constraints that the Holmesian judge should take into account when making constitutional law. External Beardian scholarship helps to delineate the feasible political options or possibilities for constitutional law, a critical datum from the internal but nonideal perspective of the Holmesian judge.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"29 1","pages":"457-474"},"PeriodicalIF":0.0,"publicationDate":"2014-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68154804","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Challenge of Originalism does many things well: it showcases the sophistication of current originalist scholarship; it displays the resonance that originalist arguments have with diverse and international audiences; and it reminds us that originalists are far from having won the debate. The Challenge of Originalism brings together some of the leading lights of originalist scholarship, and puts them in conversation with each other and with prominent critics. The Challenge of Originalism also, as all collections must, leaves out some important topics. Most prominent is originalism’s relationship to nonoriginalist precedent, a subject of significant scholarly interest over the past ten years. Also, The Challenge of Originalism introduces some of the key recent originalist moves, such as incorporating the concept of constitutional construction, without fully elucidating them. The essays in The Challenge of Originalism are consistently nuanced and thought-provoking. The Challenge of Originalism includes introductory material to originalism and the debates surrounding it, and its consistently high level of sophistication also makes it valuable to scholars already engaged in these debates. In Part II, I first describe the important contributions made by and in The Challenge of Originalism. In particular, The Challenge of Originalism showcases originalism’s sophistication and broad appeal. Then, in Part III, I suggest two important and unresolved challenges to originalism: (1) fully explaining the nature and scope of constitutional construction; and (2) describing what role, if any, nonoriginalist precedent retains in originalism. I end, in Part IV, by suggesting that the essays exemplify the chief reason for originalism’s continuing and broad-based allure — the reason it presents a challenge — the Constitution’s writtenness.
{"title":"The challenge of, and challenges to, originalism","authors":"Lee J. Strang","doi":"10.2139/SSRN.2278473","DOIUrl":"https://doi.org/10.2139/SSRN.2278473","url":null,"abstract":"The Challenge of Originalism does many things well: it showcases the sophistication of current originalist scholarship; it displays the resonance that originalist arguments have with diverse and international audiences; and it reminds us that originalists are far from having won the debate. The Challenge of Originalism brings together some of the leading lights of originalist scholarship, and puts them in conversation with each other and with prominent critics. The Challenge of Originalism also, as all collections must, leaves out some important topics. Most prominent is originalism’s relationship to nonoriginalist precedent, a subject of significant scholarly interest over the past ten years. Also, The Challenge of Originalism introduces some of the key recent originalist moves, such as incorporating the concept of constitutional construction, without fully elucidating them. The essays in The Challenge of Originalism are consistently nuanced and thought-provoking. The Challenge of Originalism includes introductory material to originalism and the debates surrounding it, and its consistently high level of sophistication also makes it valuable to scholars already engaged in these debates. In Part II, I first describe the important contributions made by and in The Challenge of Originalism. In particular, The Challenge of Originalism showcases originalism’s sophistication and broad appeal. Then, in Part III, I suggest two important and unresolved challenges to originalism: (1) fully explaining the nature and scope of constitutional construction; and (2) describing what role, if any, nonoriginalist precedent retains in originalism. I end, in Part IV, by suggesting that the essays exemplify the chief reason for originalism’s continuing and broad-based allure — the reason it presents a challenge — the Constitution’s writtenness.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"29 1","pages":"111"},"PeriodicalIF":0.0,"publicationDate":"2013-08-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68057279","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines Justice Scalia's judicial opinions from a literary perspective rather than a legal one to demonstrate that he is a master of metaphor and other belletristic flourishes. Focusing on the style rather than the substance of his writing, the article uses examples from various Scalia opinions to illustrate that he wields a wicked poison pen, peppers his opinions with creative lists of examples, and is wont to drop in a bon mot here and there, not to mention an arcane foreign phrase that sends lesser mortals rushing to their Latin, French, or German dictionaries. Along the way, the article reveals some fascinating information about the tropes and allusions that Justice Scalia uses. And between the lines, the article offers criticism of Scalia's conservative philosophy.
{"title":"Justice Scalia and the Art of Rhetoric","authors":"Jeffrey Shaman","doi":"10.2139/ssrn.1932914","DOIUrl":"https://doi.org/10.2139/ssrn.1932914","url":null,"abstract":"This article examines Justice Scalia's judicial opinions from a literary perspective rather than a legal one to demonstrate that he is a master of metaphor and other belletristic flourishes. Focusing on the style rather than the substance of his writing, the article uses examples from various Scalia opinions to illustrate that he wields a wicked poison pen, peppers his opinions with creative lists of examples, and is wont to drop in a bon mot here and there, not to mention an arcane foreign phrase that sends lesser mortals rushing to their Latin, French, or German dictionaries. Along the way, the article reveals some fascinating information about the tropes and allusions that Justice Scalia uses. And between the lines, the article offers criticism of Scalia's conservative philosophy.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"28 1","pages":"287-292"},"PeriodicalIF":0.0,"publicationDate":"2011-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67799915","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The current immigration debate adds renewed relevance to the Supreme Court's 1982 decision in Plyler v. Doe, holding that a state that provided a free public education to any child had to provide it to all children, including undocumented immigrants. Justice Brennan wrote for a 5-4 Court, with the full, if seemingly unlikely, concurrence of his conservative colleague, Lewis F. Powell Jr. This article tells the back story of how these two very different Justices came to agreement in this important case.
目前关于移民问题的辩论与1982年最高法院在普莱勒诉多伊案(Plyler v. Doe)中作出的裁决有新的关联。该裁决认为，一个向任何儿童提供免费公共教育的州，必须向所有儿童提供免费公共教育，包括非法移民。布伦南大法官为5票赞成、4票反对的最高法院做出裁决，他的保守派同事小刘易斯·f·鲍威尔(Lewis F. Powell Jr.)虽然看似不太可能，但完全同意。本文讲述了这两位截然不同的大法官如何在这个重要案件中达成一致的背景故事。
{"title":"What Would Justice Powell Do? The 'Alien Children' Case and the Meaning of Equal Protection","authors":"L. Greenhouse","doi":"10.2139/SSRN.1803609","DOIUrl":"https://doi.org/10.2139/SSRN.1803609","url":null,"abstract":"The current immigration debate adds renewed relevance to the Supreme Court's 1982 decision in Plyler v. Doe, holding that a state that provided a free public education to any child had to provide it to all children, including undocumented immigrants. Justice Brennan wrote for a 5-4 Court, with the full, if seemingly unlikely, concurrence of his conservative colleague, Lewis F. Powell Jr. This article tells the back story of how these two very different Justices came to agreement in this important case.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"25 1","pages":"29-50"},"PeriodicalIF":0.0,"publicationDate":"2009-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67748695","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2008-06-22DOI: 10.4324/9781315088945-10
J. Finnis
Suppose the core teachings of a religion with a significant number of followers inside and outside the United States entail that significant parts of the United States Constitution, including the free exercise and establishment clauses of the First Amendment, ought to be replaced either by peaceful processes such as voting or, if need be, by threats and use of force, and that governance of the United States, or of such regions, big or small, as can be brought under the religion's sway, ought to be entrusted to its followers. Would it be constitutional for Congress to forbid the entry to the United States of members of that religion unwilling to make a public declaration renouncing that teaching? Should it be? I raise these questions as a kind of test of the thesis prominent in Kent Greenawalt's fine book, that both of the religion clauses "forbid discrimination among religions" (p. 13) (emphasis in original), and that "[ o ]ne of the most powerful principles of the religion clauses is that the government may not favor some religions at the expense of others" (p. 212). You may say: Please, let's just stay in the real world. And spare us the embarrassment of trolling through other people's
{"title":"Discrimination Between Religions: Some Thoughts on Reading Greenawalt's \"Religion and the Constitution: Establishment and Fairness\"","authors":"J. Finnis","doi":"10.4324/9781315088945-10","DOIUrl":"https://doi.org/10.4324/9781315088945-10","url":null,"abstract":"Suppose the core teachings of a religion with a significant number of followers inside and outside the United States entail that significant parts of the United States Constitution, including the free exercise and establishment clauses of the First Amendment, ought to be replaced either by peaceful processes such as voting or, if need be, by threats and use of force, and that governance of the United States, or of such regions, big or small, as can be brought under the religion's sway, ought to be entrusted to its followers. Would it be constitutional for Congress to forbid the entry to the United States of members of that religion unwilling to make a public declaration renouncing that teaching? Should it be? I raise these questions as a kind of test of the thesis prominent in Kent Greenawalt's fine book, that both of the religion clauses \"forbid discrimination among religions\" (p. 13) (emphasis in original), and that \"[ o ]ne of the most powerful principles of the religion clauses is that the government may not favor some religions at the expense of others\" (p. 212). You may say: Please, let's just stay in the real world. And spare us the embarrassment of trolling through other people's","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"181 1","pages":"265-271"},"PeriodicalIF":0.0,"publicationDate":"2008-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70628040","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In Abortion and Original Meaning, Jack Balkin presents a new argument, based on his reconstruction of the principles that animated the Fourteenth Amendment, for the soundness of the result, though not the reasoning, of Roe v. Wade. That argument, however, serves the larger purpose of demonstrating why the debate between originalism and living constitutionalism rests on a false dichotomy. Once we reject the assumption that fidelity to the [constitutional] text means fidelity to original expected application, Balkin contends, we ought instead to agree that constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text. In maintaining such fidelity, moreover, [e]ach generation makes the Constitution their Constitution by calling upon its text and its principles and arguing about what they mean in their own time. It follows, Balkin claims, that [t]he choice between original meaning and living constitutionalism ... is a false choice. This short reply essay, to appear in a symposium devoted to Balkin's article, argues that Balkin mischaracterizes contemporary originalism and that his false choice claim cannot be maintained. Although Balkin is not alone in asserting that originalists believe that courts ought to be faithful to the originally expected applications of the constitutional text, almost no contemporary originalist theorist takes that view, and many have categorically rejected it. More important, though, is what follows once we all reject expectation originalism. Balkin's conclusion that originalism and non-originalism present a false choice rests squarely on his contention that fidelity to the Constitution requires fidelity to its original meaning and precludes contemporary interpreters from interpreting its text in accordance with other principles that the text can bear. Of course, it is precisely this claim that non-originalists deny. Yet Balkin presents precious little argument to support it, and nothing adequate to convince non-originalists that what they see as a true choice is in fact a false one. Not only is Balkin's proposed originalist method surprisingly undefended, but it seems inconsistent with his appreciation of the way that extra-judicial actors - especially social movements - shape constitutional meaning. Ironically, that understanding strongly suggests (though it does not entail) that the non-originalists have the better view of judicial constitutional interpretation. In short, this brief essay argues that, despite much in his article that is fresh and interesting, Balkin's empirical claim about the state of originalist argumentation rings false and his normative or conceptual claims about constitutional interpretation fail to persuade. The essay concludes by offering a few thoughts as well about the problem of abortion.
在《堕胎与原意》一书中，杰克·巴尔金(Jack Balkin)基于他对赋予第十四修正案生命力的原则的重构，提出了一种新的论点，以证明罗伊诉韦德案(Roe v. Wade)结果的合理性，而不是推理的合理性。然而，这一论点更大的目的是证明为什么原旨主义和现行宪政主义之间的争论建立在一个错误的二分法之上。巴尔金认为，一旦我们拒绝忠实于(宪法)文本就意味着忠实于最初的预期适用的假设，我们就应该同意，宪法解释要求忠实于宪法的最初含义和构成宪法文本的原则。此外，在保持这种忠诚的过程中，每一代人都通过引用宪法的文本和原则，并争论它们在自己时代的意义，使宪法成为自己的宪法。因此，巴尔金声称，在原初意义和活生生的宪政之间做出选择……是一个错误的选择。这篇简短的回答文章，将出现在一个专门讨论巴尔金文章的研讨会上，认为巴尔金错误地描述了当代原旨主义，他的错误选择主张无法维持。虽然巴尔金不是唯一主张原意主义者认为法院应该忠实于宪法文本最初预期的应用的人，但几乎没有当代原意主义者持这种观点，而且许多人断然拒绝了这一观点。然而，更重要的是，一旦我们都拒绝了期望原旨主义，接下来会发生什么。巴尔金认为原旨主义和非原旨主义是一种错误的选择，这一结论完全基于他的论点，即忠于宪法要求忠于宪法的原意，并阻止当代的解释者根据宪法所能接受的其他原则来解释宪法文本。当然，非原旨主义者恰恰否认这种说法。然而，巴尔金几乎没有提出什么宝贵的论据来支持这一观点，也没有什么足以让非原旨主义者相信，他们所认为的正确选择实际上是错误的。巴尔金提出的原旨主义方法不仅出人意料地没有得到辩护，而且似乎与他对法外行为者——尤其是社会运动——塑造宪法意义的方式的欣赏不一致。具有讽刺意味的是，这种理解强烈暗示(尽管并不必然)非原旨主义者对司法宪法解释有更好的看法。简而言之，这篇简短的文章认为，尽管巴尔金的文章中有很多新鲜有趣的地方，但他关于原旨主义论证状态的经验主义主张听起来是错误的，他关于宪法解释的规范性或概念性主张也无法令人信服。文章最后提出了一些关于堕胎问题的想法。
{"title":"Originalism and its Discontents (Plus a Thought Or Two About Abortion)","authors":"Mitchell N. Berman","doi":"10.2139/SSRN.957630","DOIUrl":"https://doi.org/10.2139/SSRN.957630","url":null,"abstract":"In Abortion and Original Meaning, Jack Balkin presents a new argument, based on his reconstruction of the principles that animated the Fourteenth Amendment, for the soundness of the result, though not the reasoning, of Roe v. Wade. That argument, however, serves the larger purpose of demonstrating why the debate between originalism and living constitutionalism rests on a false dichotomy. Once we reject the assumption that fidelity to the [constitutional] text means fidelity to original expected application, Balkin contends, we ought instead to agree that constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text. In maintaining such fidelity, moreover, [e]ach generation makes the Constitution their Constitution by calling upon its text and its principles and arguing about what they mean in their own time. It follows, Balkin claims, that [t]he choice between original meaning and living constitutionalism ... is a false choice. This short reply essay, to appear in a symposium devoted to Balkin's article, argues that Balkin mischaracterizes contemporary originalism and that his false choice claim cannot be maintained. Although Balkin is not alone in asserting that originalists believe that courts ought to be faithful to the originally expected applications of the constitutional text, almost no contemporary originalist theorist takes that view, and many have categorically rejected it. More important, though, is what follows once we all reject expectation originalism. Balkin's conclusion that originalism and non-originalism present a false choice rests squarely on his contention that fidelity to the Constitution requires fidelity to its original meaning and precludes contemporary interpreters from interpreting its text in accordance with other principles that the text can bear. Of course, it is precisely this claim that non-originalists deny. Yet Balkin presents precious little argument to support it, and nothing adequate to convince non-originalists that what they see as a true choice is in fact a false one. Not only is Balkin's proposed originalist method surprisingly undefended, but it seems inconsistent with his appreciation of the way that extra-judicial actors - especially social movements - shape constitutional meaning. Ironically, that understanding strongly suggests (though it does not entail) that the non-originalists have the better view of judicial constitutional interpretation. In short, this brief essay argues that, despite much in his article that is fresh and interesting, Balkin's empirical claim about the state of originalist argumentation rings false and his normative or conceptual claims about constitutional interpretation fail to persuade. The essay concludes by offering a few thoughts as well about the problem of abortion.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"24 1","pages":"383-404"},"PeriodicalIF":0.0,"publicationDate":"2008-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67908588","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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