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The Hollow Core of Constitutional Theory: Why We Need Editors, by Donald L. Drakeman (Cambridge University Press, 248 p., $ 32)

Dthe 2020 book by onald L. Drakeman, The Hollow Core of Constitutional Theory, goes against the grain of both liberal and modern originalist jurisprudence. Drakeman offers a practical and theoretical rationale for why constitutional interpretation must consult the intentions of the founders when interpreting the U.S. Constitution and rejects an interpretive approach that changes with the winds of modern times.

“Intent” has become a dirty word in constitutional theory circles. Some liberal scholars view the Constitution as a document that should be reinterpreted to take account of changes in society, while others, like Ronald Dworkin, argue that the Constitution contains abstract principles based on morality that must be evaluated through “judgments of political theory”. In neither case do the intentions of eighteenth-century men come into play. What is perhaps more surprising is that the originalists of today do not regard their mission as a search for lore either. intention of the Founders. As law professor Keith Whittington wrote, the “new originalism” which rose to prominence after the 1980s “is focused less on the concrete intentions of the individual drafters of constitutional texts than on the public significance of the text which has been adopted “. According to Drakeman, conservative jurists, including Antonin Scalia, adopted the public sense method – sometimes identified with textualism – as original intent case law came under attack from both sides of the political spectrum in the mid-1980s.

Drakeman finds this change unfortunate, arguing both that the objections to the original intention case law are wrong and that a search for original public meaning collides with many of them. Discussing the book on the Law and Liberty podcast, Drakeman said the arguments about “what words could have meant, what words should mean, what we would like words to mean” form the “hollow core” holding original and liberal contemporary approaches. Instead, “what we really should have been looking for all these years” were “the intentions of the legislator, what the legislator was trying to do, why the legislator was trying to do it.”

How can judges discern the original intention of a legislator when the Constitution had several authors and many more ratifiers, each with different goals, ideas and intentions? Drakeman’s response to this “many-yoke” problem begins by stating that the drafters who drafted the legal text and set the process for ratifying the Constitution, and not those who ratified the text as law, should be considered. like the main legislators. The Constitution, he writes, is a combination of well-reasoned decisions and negotiated compromises. According to Richard Eskins, legislative history – chamber debates, convention documents, original speeches – can be a useful method of determining legislative intent, especially with respect to the back-and-forth negotiation process of drafting. laws and what the drafters actually understood a constitutional provision to mean.

Drakeman cites the work of English jurists William Blackstone and Lord Edward Coke, both of whom focused on discerning legislative intent when interpreting the meaning of a given statute. Blackstone pointed out several signs to signal a legislator’s intention, one of which – the words in “their usual and best-known meaning” – inspired originalists with original public meaning.

Opponents of “living constitutionalism” often note that the interpretive approach emerged a century or more after the days of the Framers. And opponents of original intent case law sometimes gather evidence that some drafters rejected the notion of adherence to the intent of a legislator, in that they did not view their own intentions as authorized tools for lawmaking. interpret the law. Drakeman reminds us that the judges and legal commentators of the Founding era were not singularly devoted to a single method of interpretation. Some, like Thomas Jefferson, have argued that the Constitution should be updated every 19 years after its “natural expiration” and reinterpreted to accommodate the customs of a new generation, thereby avoiding the “dead hand problem. “past political figures linking those who live. in the present. In contrast, men like William Blackstone have argued for an interpretation that examines legislative intent in an authoritative legal document and applies it to resolve the case in question.

Drakeman points out that the drafters in fact incorporated methods of applying the text of the Constitution to deal with unforeseeable circumstances. Here, Drakeman endorses the notion of “updating” as opposed to non-interpretative judicial policy making, where judges or judges make a decision solely based on their personal policy preferences. Rather, the update is to “examine the new facts in light of the original conception and rationale of Parliament”. Two methods of forensic updating exist: the first is to apply old answers to evolved forms of the question in light of revolutionary changes in new technologies or societal customs. The second is to decide whether the views of society on the issue in question have strayed sufficiently from the original public significance at the time of enactment, to warrant different results, even though the activities in question have not been significantly affected. changed from previous periods.

Drakeman endorses a vision for the UK-established update, developed by thoughtful judges inspired by the writings of Blackstone and Coke, two dominant supporters of the original interpretation. The update’s English take, inspired by former MP William Wilberforce, follows a four-part test requiring reviewing judges to explain their reasoning in light of the issues surrounding lawmakers’ initial decision, the known facts at the time, how circumstances changed and whether the language used by the legislature indicated a broader or narrower interpretation of the text. Drakeman is convinced that these criteria may also be applicable for updating cases involving the Constitution of the United States.

Drakeman overturns common objections to the original intentional jurisprudence, applying them to the interpretive method that supplanted it on the Right. The “summation problem” – where a single intention is difficult to determine among the “many framers” – poses a serious challenge to the original public-sense jurisprudence, as does the “semantic summation problem”, when potential meanings competing terms exist for constitutional words or passages. Judges have abandoned the process of searching various dictionaries, debates and statutes, and now search for the original meaning of a law through thousands of relevant legal texts listed in large online databases. But this data-driven “corpus linguistics” approach cannot resolve ambiguities or problems of constitutional interpretation, argues Drakeman.

Corpus linguistics researchers (usually law professors) strive to identify the meaning of a word as it is used in the Constitution by evaluating how it has been applied in different contexts: sermons, books or articles. of newspapers in the 18th century, for example. When a word has two or more potential meanings, researchers either label it irreducibly ambiguously and therefore devoid of original meaning, or they focus on the meaning of the word that appears most frequently in a data set (using the “frequency thesis”). Drakeman rejects the frequency thesis, arguing that the intention of lawmakers, in addition to their debates, arguments and recorded speeches, remains the best way for courts to understand a legal text.

But how to discern this intention? The original intent case law can solve the semantic summons problem, argues Drakeman, by interpreting editors’ choices through constitutional debates at the time of ratification. Ground-based debates on complex constitutional issues provide clues to the drafters’ intention, helping interpreters decipher which of the competing arguments represents the original meaning of the law under consideration. This information was readily available to ratifiers and members of the general public. Drakeman suggests that by uncovering the political intent of the Framers at the time through reviewed debates, drafting history, and recorded decisions on the final form of the constitutional text, we can understand if and how a provision can be update to apply to change times. This approach is in keeping with Drakeman’s overarching goal in the book: to show how researching the writers’ intentions is central to what it means to interpret a legally authorized text.

Finally, Drakeman responds to practical and political objections to the original intentional jurisprudence. These obstacles include what Richard Fallon calls “sociological legitimacy,” in which judges are concerned with how the general public and judges in other countries perceive their adherence to originalism. Meanwhile, some comparative law scholars argue that the notion of initial intent is only a cover for conservative politics on the bench. Drakeman refutes both hypotheses, pointing to evidence that justifies bipartisan support for respecting the Framers’ intentions as a fundamental constitutional theory of interpretation. Intent originalism appears to have gained popularity in the United Kingdom and Canada, as well as being increasingly cited by legal scholars in the United States.

The central aim of Drakeman’s work has been to explain the importance of interpreting and applying an “authoritative legal text for many generations, and to show how this traditional definition of interpretation applies to the creation and interpretation of the American Constitution ”. At the heart of the various forms of constitutional interpretation, he writes, is the need to determine the will be of the legislator, understood. The drafters incorporated certain provisions into the Constitution not only for the purpose of deriving the original meaning, but also to apply an 18th century legal document to deal with unforeseen future problems and circumstances. Drakeman’s book argues that the overlooked question of original intent remains the best way to understand what the Constitution is supposed to do.

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