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Contenders in the Debate over the Construction Zone [No. 86]


One of the central questions about the extent
of the construction zone, is the extent to which the Constitution has a legal meaning. Which is necessarily a technical meaning. The concepts are probably polished, as it
were, compared to the concepts in ordinary language. The question is how was the Constitution understood? What kind of meaning did it have at that time? Maybe the context was thin, maybe it was thick. That’s I think a major debate in Originalism
that’s going on right now. So, let me tell you about some of the contenders
in that debate. To begin with someone who has the thinnest
view of originalist meaning is a Professor named Jack Balkin at the Yale Law School,
who’s the originator of something called, “Framework Originalism.” He sees the Constitution as having quite a
thin meaning, it has certain meanings or he certainly agrees, for instance, that there
are two senators in every state, but most of the grand clauses of the Constitution have
a very thin semantic meaning. What establishment of religion is, is not
very clear. What the commerce clause is, it could mean
intercourse, it could mean a lot of different matters, perhaps. We can interpret that according to the needs
of our time, according to social movement’s demand from it, and that obviously makes the
Constitution a very flexible document, and not a very constraining document even under
Originalism. To take the other view that’s most strongly
on the other side, would be a view I think of the Constitution as a legal document informed
by original methods. This would suggest that a lot of the terms
of the Constitution that may seem abstract, have a legal meaning, that has been defined,
actually before the Constitution was created by English legal history or the 14th Amendment,
by Antebellum history in the United States, and there has a much more constraining fact
and that reduces, if not eliminates, the construction zone, also because there are rules of interpretation
that suggest you’re required to take the better interpretation even if it’s only a little
better than the other. Whereas Professor Balkin, I think, would suggest
you’re able to take any plausible interpretation of the Constitution. Now I think there are many originalists who
are somewhere in between these two methods who would see that the Constitution has a
thicker meaning than Professor Balkin, but would not accept the Constitution as this
very thick legal meaning that I and Professor Rappaport advocate.

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