The language of law and the foundations of American constitutionalism
- ISBN: 9780521140911
- Editorial: Cambridge University Press
- Fecha de la edición: 2010
- Lugar de la edición: Cambridge. Reino Unido
- Encuadernación: Rústica
- Medidas: 24 cm
- Nº Pág.: 428
- Idiomas: Inglés
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 The Founders' Constitution of fixed and permanent meaning has been replaced by the idea of a 'living' or evolving constitution.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.
Introduction : The politics of original intention
The Constitution and the scholarly tradition : recovering the founders' constitution
Nature and the language of law : Thomas Hobbes and the foundations of modern constitutionalism
Language, law, and liberty : John Locke and the structures of modern constitutionalism
The limits of natural law : modern constitutionalism and the science of interpretation
The greatest improvement on political institutions : natural rights, the intentions of the people, and written constitutions
Chains of the Constitution : Thomas Jefferson, James Madison, and the "political metaphysics" of strict construction
The most sacred rule of interpretation : John Marshall, originalism, and the limits of judicial power
The same yesterday, today, and forever : Joseph Story and the permanence of constitutional meaning
Epilogue: The moral foundations of originalism