Saturday, March 29, 2014

Of course [new link]
3:AM: The final essays in Analytic Philosophy in America advance an originalist theory of interpretation applied to U.S. constitutional rules about due process. Can you say something about your approach here?

SS: Yes, I outline a theory of legal interpretation I call “Deferentialism”, which can be taken to be a version of originalism, though I hope it is an improved version. Its main features are:
(i) The legal content of a written statute or a specific provision of a written constitution cannot be identified with either the semantic content of the relevant text or the legal or political rationale that provided the purpose of its passage, but it can be identified with what was asserted or stipulated by the relevant lawmakers or ratifiers in passing or approving it. ...
If it's not one thing it's another.

repeats. Jack Balkin
I have posted my latest essay, Why are Americans Originalist?, on SSRN. It is an attempt to explain to non-Americans why originalism has such influence in American federal constitutional argument but lacks a similar degree of influence in the interpretation of the constitutions of other democracies, or even in the interpretation of the fifty American state constitutions. The answer is that originalism is a feature of American national culture, deeply connected to narratives of American national identity.
Serendipity, I guess.
Since Soames refers to Michael McConnell and I linked to Balkin it only makes sense to add this.

and a new tag: Pedants and Children.

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