The Language of Law and the Foundations of American Constitutionalism

by Gary L. McDowell

Overview

For much of its history, the interpretation of the United States Constitution presupposed judges seeking the meaning of the text and the original intentions behind that text, a process that was deemed by Chief Justice John Marshall to be “the most sacred rule of interpretation.” Since the end of the nineteenth century, a radically new understanding has developed in which the moral intuition of the judges is allowed to supplant the Constitution’s original meaning as the foundation of interpretation. The Founders’ constitution of fixed and permanent meaning has been replaced by the idea of a “living” or evolving constitution. Gary L. McDowell refutes this new understanding, recovering the theoretical grounds of the original Constitution as understood by those who framed and ratified it. It was, he argues, the intention of the Founders that the judiciary must be bound by the original meaning of the Constitution when interpreting it.

Product Details

ISBN-13:	9780521140911
Publisher:	Cambridge University Press
Publication date:	06/28/2010
Edition description:	New Edition
Pages:	428
Product dimensions:	6.10(w) x 9.10(h) x 1.00(d)

About the Author

Gary L. McDowell is a Professor in the Jepson School of Leadership Studies at the University of Richmond, where he holds the Tyler Haynes Interdisciplinary Chair of Leadership Studies, Political Science, and Law. He is the author or editor of ten books, including Equity and the Constitution: The Supreme Court, Equitable Relief and Public Policy; Curbing the Courts: The Constitution and the Limits of Judicial Power; Justice vs. Law: Courts and Politics in American Society (with Eugene W. Hickok, Jr.); and Friends of the Constitution: Writings of the 'Other' Federalists (edited with Colleen Sheehan). In addition to his teaching appointments, he has served as the Director of the Office of the Bicentennial of the Constitution at the National Endowment for the Humanities, Associate Director of Public Affairs at the United States Department of Justice and chief speechwriter to United States Attorney General Edwin Meese III, and Director of the Institute of United States Studies in the University of London.

Table of Contents

Introduction: the politics of original intention; 1. The Constitution and the scholarly tradition: recovering the Founders' Constitution; 2. Nature and the language of law: Thomas Hobbes and the foundations of modern constitutionalism; 3. Language, law, and liberty: John Locke and the structures of modern constitutionalism; 4. The limits of natural law: modern constitutionalism and the science of interpretation; 5. The greatest improvement on political institutions: natural rights, written constitutions and the intention of the people; 6. Chains of the Constitution: Thomas Jefferson, James Madison and the political metaphysics of strict construction; 7. The most sacred rule of interpretation: John Marshall, originalism, and the limits of judicial power; 8. The same yesterday, to-day, and forever: Joseph Story and the permanence of constitutional meaning; Epilogue: the moral foundations of originalism.

Editorial Reviews

"In this fine book, Gary McDowell shows that the Constitution is our fundamental law - not our master but our guide and mentor. Only at our peril do we try to make it our servant."
Harvey Mansfield, Harvard University

"Erudite and lucid: McDowell's book is a must-read for those who wish to understand the philosophical and linguistic roots of the originalist tradition of constitutional interpretation."
R. Kent Newmyer, University of Connecticut School of Law

"This book adds a major dimension of depth to the case for guiding judicial interpretation of the Constitution by the original intent of the framers. McDowell articulates a deeply thought provoking meditation, informed by a fertile understanding of key foundations for originalism articulated by major figures in political philosophy, in the common law, and among the Founders themselves who shaped the theorizing that informs our constitutional order."
Thomas Pangle, University of Texas at Austin

"For several decades, Gary McDowell has been one of our most brilliant and learned students of law and political philosophy. This book is his summa, a profound defense of originalism as a moral Constitutional philosophy, a brilliant discourse on the framers and their philosophical forbears and successors, and a powerful handbook of strategy in what McDowell calls "the contemporary war for the Constitution". This work is essential reading for anyone who cares about the Supreme Court and the Constitution, but it is more. It is, simply stated, one of this generation's most important contributions toward preserving the rule of law itself."
Stephen Presser, Northwestern University School of Law

"In this timely book, the case against the so-called "living" constitution is so powerfully argued and so clearly presented that it cannot be ignored."
Gordon S. Wood, Brown University

"Nonetheless, I suspect that The Language of The Law will be well received by conservatives. McDowell will, one might say, successfully preach to the choir."
Stephen M. Feldman, Professor of Law at University of Wyoming

"With The Language of Law and the Foundations of American Constitutionalism, Gary L. McDowell provides what will probably stand for some time as the most thorough historical account in defense of the originalist approach to the Constitution, exemplified by Antonin Scalia and Robert Bork. In elegant and often-insightful fashion, McDowell surveys the key Enlightenment thinkers who influenced the American Founders, then considers the way those who created and first applied the Constitution thought it should be interpreted."
Martin S. Flaherty, The Journal of American History

"… an outstanding work of scholarship, ably synthesizing and analyzing a considerable body of material and bringing out its contemporary relevance."
Society

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