Constitutional Interpretation

Wayne ("Carrifex") asked for some references on constitutional interpretation. I list several below. The first three are basically "conservativie" theories of interpretation. But most folks don't realize that "originalism" is not the same thing as "textualism"; indeed, "originalism" can give answers diametrically opposite "textualism." The last citation is more of a criticism of orginalism and textualism, although I've only skimmed through it briefly. (Justice Stephen Breyer has a book out as well, although I haven't had a chance to read it.)

Whittington writes well and is extremely smart.

Keith Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Lawrence: University Press of Kansas, 1999; paper 2001)

Keith Whittington, "The New Originalism,” Georgetown Journal of Law and Public Policy 2:2 (Summer 2004): 599-613, can be downloaded here.

Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton University Press, 1998).

American Constitution Society, It’s a Constitution We’re Expounding, Collected Writings on Interpreting Our Constitution (2009).

Mount Rushmore

I could see Washington and Jefferson on Mount Rushmore from my window. I'd guess they're maybe half a mile away. And they're lit up for the first part of the night. Impressive. (Although the general area is really touristy. I visited Rushmore as a child as well - I remember it being really touristy back then as well.)

I've been "discussion leader" for a conference on executive power and the Constitution for a small group of high-school teachers from Kentucky. We're at a lodge just outside of Keystone.

It was a good group of teachers, and good material.

At the beginning of the last session I asked them each, if they got to choose, which presidents would they place on Mt. Rushmore today?

About a half would keep it the way it is (which is a disappointment - Teddy simply does not belong on Mt. Rushmore). Most of the rest would replace Teddy with FDR. One would have replaced Thomas Jefferson with James Madison.

Interestingly, more teachers would have dropped Thomas Jefferson from Rushmore than would have dropped Teddy Roosevelt. I don't think that anyone dropping either Washington or Lincoln from Rushmore. A couple of folks would have placed Andrew Jackson among the four.

But one teacher did suggest the list I'd put on Mt. Rushmore if I got to choose who would go up there today: Washington, Lincoln, FDR, and Reagan. The closest call on my list is FDR. He should never have run for a fourth term (given how incredibly ill he was at the time), and many of the early New Deal policies were terrible. (E.g., establishing price floors for foodstuffs while people were starving.) Nonetheless, his presidency did represent a sea change in the nation, both on account of the New Deal, but more so because of WWII.

What we're listening to these days

Some Philip Glass. Here's a link to Floe from Glassworks.

And quite a bit of Bach.

This is Jack's favorite right now.

This is Megan's favorite right now.

This is my favorite right now. Well, and this too.