The seemingly arid topic of judicial interpretation and construction of federal law has been taken up in a lively and informative discussion on The Legal Theory Blog.
The point of departure for the series of posts is what has been described as the Supreme Court’s endorsement of “New Originalism” in the recent Second Amendment case, District of Columbia v. Heller:
The opinion of the Court by Justice Scalia provides the clearest expression of public meaning originalism to be found in a Supreme Court decision. Justice Stevens opinion provides both a defence of constitutional stare decisis and a development of original intentions originalism. Justice Breyer’s opinion provides a model of the post-realist interest-balancing approach to constitutional practce.
Add to this, the obvious fact that Heller represents the very rare circumstance of the Court making its first major pronouncement on a constitutional provision some two-hundred years after its adoption, and you have the recipe for a case that is sure to enter the canon of decisions that are the focal points for constitutional theory. Heller, like Brown v. Board, Lochner v. New York, The Slaughterhouse Cases, and Roe v. Wade, is the kind of case upon which every major constitutional theory and theorist must take a position.
Heller and Originalism, Part I: An Introduction to the Series
Note that Justice Breyer, author of the MetLife v. Glenn opinion, dissented in the Heller case which is the subject of Professor Solum’s analysis. As for Justice Breyer, his point of view in Heller is characterized as:
a model of the post-realist interest-balancing approach to constitutional practice.
(Richard Posner’s version of applied pragmatism in other words.)
The series is written in an interesting, accessible style and offers practical insight into an important distinction between judicial interpretation and judicial construction (See Part III). In fact, it was this issue that first drew my attention to this discussion – Randy Barnett at The Volokh Conspiracy noted that Jack Balkin and Larry Solum were “having a very important exchange on the originalist methodology employed by Justice Scalia in Heller.”
Randy’s post provides a very helpful orientation to the elements of judicial perspective as well and offers the advantage of several links that enlarge on the discussion.
Note: Additional commentary on this subject will be found in :: Statutory Construction – Textualist Or Intentionalist?
Bookmarks – The Legal Theory Blog is one of my favorites. A visit to The Volokh Conspiracy will be worth your time also. On Randy Barnett’s site, you may find this of interest as well:
To see and hear Professor Barnett discuss his book Restoring the Lost Constitution (with critical commentary by Walter Dellinger and Judge David Sentelle) click here for Real Video and here for Real Audio