Long-time readers of the faculty lounge may recall my interest in public conceptions of the Constitution (and here) in the old South. One of the things that interests me is how though they sometimes had versions of originalism, they more frequently relied on other modes of interpretation. When they made appeals to history, it was more to frame general principles than to provide an interpretation of a particular constitutional provision. In fact, they tended to frame the constitutional interpretation in terms of general principles, whether drawn from history or from observations of political philosophy. They saw the Constitution as not just a document but as a set of principles -- such as adherence to Union, expansion, and economic development -- that helped propel and united the country.
Sometimes antebellum southerners went so far as to suggest that they reject older principles of constitutional interpretation. James Bruce, for instance, one of the wealthiest Southerners of the antebellum era and a supporter of federal and state spending on internal improvements -- like transportation -- criticized the narrow construction of the Constitution in a graduation address at UNC in 1841.
It is high time that the South was giving up its old prejudices and antiquated modes of thinking—that it was breaking the ties which unite it to a departed age, and bind together the living and the dead. Our ancestors used the lights of their age, why should we reject the brighter ones of our own? They ran ahead of their times, why should we lag behind ours? They were dissatisfied with their condition, and improved it, let us do likewise; they were wise in their generation, let us be wise in ours.
I am hoping that there will be increasing talk of how public ideas of the Constitution related to political and judicial behavior in the old South. The scholarship on public constitutionalism runs alongside recent talk of the new originalism -- that is, recent literature on original intent and constitutional interpretation (and I think to applied legal history, too.) Next week the Fordham Law Review is hosting a conference on the new constitutional originalism. Cribbing now from the conference website:
Originalism—the thesis that legitimate constitutional interpretation is bound by original meaning or intent—has emerged as an influential and controversial approach to how we interpret our Constitution. While some claim that constitutional interpretation and legitimacy require unearthing original meaning or intent, others assert that tethering current citizens and interpreters to the comprehension of long-dead people is the antithesis of good and proper democratic government.
The Fordham Law Review is proud to present a symposium gathering a remarkable group of legal scholars, historians, and philosophers to discuss if, how, and why Originalism should inform constitutional analysis.
Friday, March 1
10 - 11:45 Panel 1: Overview: The Arc of Originalism
How did originalism come onto the legal and academic scene in constitutional law and how has it changed? Are “Original Intent,” “Original Understanding,” “Original Public Meaning,” and “Textualism” distinct from one another? Which issues – substantive, theoretical, and methodological – currently merit closest scrutiny? To what extent have academic debates influenced judicial decisionmaking in the methodology of constitutional interpretation?
Randy Barnett, Georgetown Law School
James Fleming, Boston University School of Law
Keith Whittington, Princeton University, Politics
Benjamin Zipursky, Fordham University School of Law
1:15 – 2:45 Panel 2: The Meaning of Meaning in Constitutional Interpretation (Part I)
To what extent can constitutional meaning be detached from what constitutional ratifiers or framers intended to say; how can meaning be detached from what was meant? To what extent can semantic meaning play a central role in constitutional interpretation? Does semantic meaning need to be supplemented in the process of interpretation? Is the interpretation/construction distinction tenable and useful? To what extent can meaning be derived from dictionaries?
Larry Alexander, San Diego Law School
Mitch Berman, University of Texas Law School
Larry Solum, Georgetown Law School
2:45 - 3:15 Break
3:15 - 5:00 Panel 3: The Meaning of Meaning in Constitutional Interpretation (Part II)
Andrei Marmor, University of Southern California, Philosophy & Law
Stephen Neale, City University of New York, Graduate Center, Philosophy
Tara Smith, University of Texas, Philosophy
Scott Soames, University of Southern California, Philosophy
5:00 - 6:00 Reception in McNally Atrium
Saturday, March 2 (Day 2 of Symposium)
9:00 - 9:30 Coffee and Bagels
9:30 – 10:55 Panel 4: The Role of History in Constitutional Interpretation
If one believes that understanding constitutional history is critical to interpreting the constitution, does that make one an originalist? Are there models of the relevance of constitutional history in constitutional interpretation that do not qualify as forms of originalism? When is history relevant to constitutional interpretation, and why? Do the framers, ratifiers, lawyers, scholars, laypeople, or some combination of the above provide appropriate objects of study?
Jack Balkin, Yale Law School
Saul Cornell, Fordham University, History
Andrew Kent, Fordham University School of Law
Thomas H. Lee, Fordham University School of Law
10:55 - 11:05 Break
11:05 – 12:30 Panel 5: Constitutional Theory With and Without Originalism
Why has so much of the terrain of constitutional theory been dominated by various forms of originalism in the past thirty years, given the variety of non-originalist approaches to constitutional interpretation? Can other theoretical models address legitimacy concerns as well as forms of originalism (or better)? Are the concerns driving originalism sufficient to narrow the domain of arguments in constitutional law? Should the past -- original intent or meaning, or precedent -- be even presumptively binding in constitutional interpretation? If so, why? If not, what is the appropriate ground for constitutional interpretation?
Abner Greene, Fordham University School of Law
Leslie Goldstein, University of Delaware, Political Science (Emerita)
Bernadette Meyler, Cornell Law School
William Michael Treanor, Georgetown Law School
The image is of the Washington statute at the statehouse in Raleigh. By the 1850s, Washington was being used to support pretty divergent approaches to southern politics -- there was the states' rights version of Washington and the pro-Union version, too. That illustrates how flexibly southerners viewed the Constitution and the ideas supporting it. I hope to write some more about this when the papers from this conference are available.