Dead document walking

Boston University Law Review

Volumn 92, Issue 4, 2012, Pages 1225-1236

  Lawson, Gary ^a  

^a BOSTON UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 84866077508     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (28)

1. see Jack N. Rakove, Joe the Ploughman Reads the Constitution, or, the Poverty of Public Meaning Originalism, 48 SAN DIEGO L. REV. 575, 575-76 (2011).
2. JACK M. BALKIN, LIVING ORIGINALISM (2011) [hereinafter BALKIN, LIVING ORIGINALISM];
3. DAVID A. STRAUSS, THE LIVING CONSTITUTION (2010). In Professor Balkin's case, one should properly say one of his recent books on constitutionalism.
4. See JACK M. BALKIN, CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN AN UNJUST WORLD (2011).
5. See, e.g., Lawrence B. Solum, Semantic Originalism (Univ. of Ill. Coll. of Law Pub. Law & Legal Theory Research Paper Series, No. 07-24, 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1120244.
6. See, e.g., Mitchell N. Berman, Originalism Is Bunk, 84 N. Y. U. L. REV. 1 (2009);
7. Thomas B. Colby, The Sacrifice of the New Originalism, 99 GEO. L. J. 713 (2011).
8. Peter J. Smith, How Different Are Originalism and Non-Originalism?, 62 HASTINGS L. J. 707, 709 (2011).
9. See BALKIN, LIVING ORIGINALISM, supra note 2, at 4-5.
10. see Gary Lawson, On Reading Recipes... and Constitutions, 85 GEO. L. J. 1823, 1832-33 (1997). But since I do not have a normative theory of constitutionalism that I am prepared to describe in a scholarly work, I will content myself for now with just considering it. With respect to what the world might look like if originalism as an interpretative theory was faithfully followed as an adjudicative theory
11. see Gary Lawson & Guy Seidman, Originalism as a Legal Enterprise, 23 CONST. COMMENT. 47 (2006) (setting forth a theory of "reasonable observer originalism"). However, to sort out from among Professor Strauss's conclusions the clearly correct ("[s]tates could freely violate the principle of 'one person, one vote' in designing their legislatures") from the mostly correct ("[m]any federal labor, environmental, and consumer protection laws would be unconstitutional from the probably correct ("[t]he Bill of Rights would not apply to the states") from the mostly wrong ("[t]he government would be free to discriminate against women") from the clearly wrong ("[r]acial segregation of public schools would be constitutionaf and "[t]he federal government could discriminate against racial minorities (or anyone else) pretty much any time it wanted to") would take a separate article.
12. See BALKIN, LIVING ORIGINALISM, supra note 2, at 16-17.
13. See Are the People of the World Being Dumbed Down?, THE CROWHOUSE, http://www.thecrowhouse.com/8th-test.html (last visited May 28, 2012) (providing what purports to be a middle-school exam from 1895). There are some questions about whether the exam was really aimed at students rather than teachers, but even if it was aimed at teachers, it says something about what was expected to be taught.
14. CITY SLICKERS (Castle Rock Entertainment 1991).
15. See, e.g., ROBERT A. HEINLEIN, TIME ENOUGH FOR LOVE: THE LIVES OF LAZARUS LONG 248 (1973) ("A human being should be able to change a diaper, plan an invasion, butcher a hog, conn a ship, design a building, write a sonnet, balance accounts, build a wall, set a bone, comfort the dying, take orders, give orders, cooperate, act alone, solve equations, analyze a new problem, pitch manure, program a computer, cook a tasty meal, fight efficiently, die gallantly. Specialization is for insects.").
16. BALKIN, LIVING ORIGINALISM, supra note 2, at 21.
17. See Gary Lawson, Conservative or Constitutionalist?, 1 GEO. J. L. & PUB. POL'Y 81, 82 (2002).
18. See, e.g., Larry Yackle, In Medias Res, 92 B. U. L. Rev. 1259 (2012).
19. see BALKJN, LIVING ORIGINALISM, supra note 2, at 138-82, is much easier to defend as legitimation than as ascertainment, though that is a topic for a separate article.
20. STAR TREK V: THE FINAL FRONTIER (Paramount Pictures 1989).
21. BALKIN, LIVING ORIGINALISM, supra note 2, at 38.
22. The terminological distinction between interpretation and construction is often traced to KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING 1-2(1999), though the substantive distinction between discovering and applying norms is ancient. For a remarkably thorough but compact introduction to the interpretation/construction distinction
23. see Randy E. Barnett, Interpretation and Construction, 34 HARV. J. L. & PUB. POL'Y 65, 66 (2011).
24. See, e.g., BALKIN, LIVING ORIGINALISM, supra note 2, at 22 (observing that originalism-as-ascertainment "will not be sufficient to decide a wide range of controversies");
25. As a matter of pure interpretative theory, apart from the demands of adjudication, the problem of construction can never arise, because "I don't know" is always available as an interpretative answer. In adjudication, however, "if you choose not to decide, you still have made a choice." RUSH, Freewill, on PERMANENT WAVES (Mercury 1980).
26. See Gary Lawson, Legal Indeterminacy: Its Cause and Cure, 19 HARV. J. L. & PUB. POL'Y 411, 421-28 (1996).
27. Cf. NATIONAL TREASURE (Walt Disney Pictures 2004).
28. see Gary Lawson, Proving the Law, 86 NW. U. L. REV. 859, 870 (1992).