Constitutional Interpretation: The Basic Questions / Edition 1

by Sotirios A. Barber, James E. Fleming

Overview

Ronald Dworkin famously argued that fidelity in interpreting the Constitution as written calls for a fusion of constitutional law and moral philosophy. Barber and Fleming take up that call, arguing for a philosophic approach to constitutional interpretation. In doing so, they systematically critique the competing approaches - textualism, consensualism, originalism, structuralism, doctrinalism, minimalism, and pragmatism - that aim and claim to avoid a philosophic approach. Constitutional Interpretation: The Basic Questions illustrates that these approaches cannot avoid philosophic reflection and choice in interpreting the Constitution. Barber and Fleming contend that fidelity in constitutional interpretation requires a fusion of philosophic and other approaches, properly understood. Within such a fusion, interpreters would begin to think of text, consensus, intentions, structures, and doctrines not as alternatives to, but as sites of philosophic reflection about the best understanding of our constitutional commitments. Constitutional Interpretation: The Basic Questions, examines the fundamental inquiries that arise in interpreting constitutional law. In doing so, the authors survey the controversial and intriguing questions that have stirred constitutional debate in the United States for over two centuries, such as: how and for what ends should governmental institutions and powers be arranged; what does the Constitution mean under general circumstances and how should it be interpreted during concrete controversies; and finally how do we decide what our constitution means and who ultimately decides its meaning.

Product Details

ISBN-13:	9780195328585
Publisher:	Oxford University Press
Publication date:	07/05/2007
Edition description:	New Edition
Pages:	208
Product dimensions:	6.45(w) x 9.18(h) x 0.59(d)

About the Author

University of Notre Dame

Fordham University School of Law

Table of Contents

Preface     xiii
Part I
The Presuppositions of Constitutional Interpretation     3
The Principal Questions of Constitutional Interpretation     13
The Principal Features of the American Constitutional Order: The Positive Constitutionalism of The Federalist     35
Part II
Approaches to Constitutional Interpretation     59
Textualism and Consensualism     67
Narrow Originalism/Intentionalism     79
Broad Originalism     99
Structuralism     117
Doctrinalism and Minimalism     135
The Philosophic Approach     155
Pragmatism     171
Epilogue: A Fusion of Approaches to Constitutional Interpretation     189
Index     193

Editorial Reviews

"An absolutely superb presentation of a "Dworkinian" approach to constitutional interpretation" -Sanford Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law, University of Texas School of Law

"Quite simply superb. Fleming and Barber have produced a book that is a carefully argued, thorough, and eloquent introduction to the most important foundational questions about constitutional meaning. Their book is both widely accessible and intellectually sophisticated." -Lawrence Solum, John E. Cribbet Professor of Law & Professor of Philosophy. University of Illinois College of Law

"A well-written, creative, and original book that makes complex issues of constitutional interpretation and political theory come alive to a wide audience. It is a masterpiece of scholarship and scholarly teaching which I plan to use in my classes." -Ronald Kahn, James Monroe Professor of Politics and Law, Oberlin College

From the Publisher