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April 23, 2018|Clarence Thomas, Due Process Clause, Language of the Law, Neil Gorsuch, original methods, Originalism, Sessions v. Dimaya

Gorsuch’s Originalist Exploration of the Legal Meaning of Due Process

by John O. McGinnis|

Chambers of the U.S. Supreme Court (Eric Cox Photography/Shutterstock.com)
An originalist approach to due process can take several forms, and Justice Gorsuch's "surprise" decision in Dimaya v. Sessions reinforces this.

July 31, 2017|Due Process, Eighth Amendment, John Stinneford, Language of the Law, Michael McConnell, Nathan Chapman, original methods originalism, Ryan Williams

Originalist Scholarship Relying on the Language of the Law–Part I

by John O. McGinnis, Mike Rappaport|

We have recently written a paper arguing that the Constitution is written in the language of the law. In particular, the language of the Constitution includes terms, like “Bill of Attainder,” that are patently technical, and terms, like “good Behavior,” that are latently so in that they have both an ordinary and legal meaning but are better interpreted according to the latter. It also includes legal interpretive rules, including those that tell readers when to understand a term in its legal sense or its ordinary meaning sense.

The Constitution’s legal language is significant. Theoretically, it shows that original methods originalism is the correct form of originalism, because the Constitution’s legal interpretive rules are crucial to cashing out its meaning. Practically, the richness of its idiom provides resources to address otherwise unresolvable interpretive questions.

Striking confirmation of our thesis comes from modern originalist scholarship.  Much of the best of such work depends on reading the Constitution as written in the language of the law and is inconsistent with reading it as written in ordinary language. In this post and the next we will provide some examples.

John Stinneford has provided a new interpretation of the Eighth Amendment by reading the Clause in the language of law. 

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May 31, 2017|Language of the Law, Original Intent, original methods originalism, Original Public Meaning

Original Methods Originalism Part II: The Convergence Thesis and the Language of the Law Thesis

by Mike Rappaport|

In my last post I discussed the basic idea of original methods originalism and the different versions of that interpretive approach.  Here I want to note a very significant implication of Original Methods Originalism: the possible convergence of original intent and original public meaning.  I then want to discuss another aspect of original methods – the view that the Constitution is written in the language of the law and therefore should be interpreted as a legal document. The Convergence Thesis The different versions of original methods discussed in my prior post also have important implications for how originalism is conducted.  For many…

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March 9, 2017|Constitution, Interpretive Rules, Language of the Law, Ordinary Language, original methods originalism, Originalism

The Constitution Is Written in the Language of the Law

by John O. McGinnis|

The Constitution has launched hundreds of debates about its meaning.  But before these disputes can be settled an underlying clash of visions about the nature of its very language requires resolution.  One view holds that the Constitution is written in ordinary language and is thus fully accessible to anyone with knowledge of the English language.  The other, in contrast, is that the Constitution is written, like many other documents with legal force, in the language of the law.

The ordinary language view is often assumed both by the Supreme Court and scholars. But in a new paper Mike Rappaport and I show that the better view is that the Constitution is written in the language of law and that this has important implications for constitutional interpretation. Surprisingly, no one has ever considered how to determine whether the Constitution is written in the language of the law or in ordinary language.

We describe the factors to determine whether Constitution is written in the language of the law. The language is key and the paper for the first time catalogues all the technical terms in the original document.  We show that the number of legal terms in the Constitution is much larger than most people recognize and probably numbers about one hundred!

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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