Academic

Lloyd on Thomas & Scalia as Originalists and Levels of Constitutional Meaning

By Lawrence Solum

Harold Anthony Lloyd (Wake Forest University - School of Law) has posted 'Original' Means Old, 'Original' Means New: An 'Original' Look at What 'Originalists' Do on SSRN. Here is the abstract:

This article explores two different forms of Constitutional "originalism." One form (that of Justice Thomas) purports to embrace the intent of a specific oracular group while the other form (that of Justice Scalia) purports to embrace the original meaning of the Constitution?s text. Though originalism in either form may have initial common sense appeal, both forms of originalism founder upon analysis. Deconstructing such flawed doctrines proves useful in constructing a more sensible approach to Constitutional interpretation. This more sensible approach recognizes and respects, among other things, three levels of Constitutional meaning: referential meaning embodied in the Constitution's Preamble, primary non-referential meaning embodied in the non-Preamble textual frame, and secondary non-referential meaning embodied in the solutions to the issues framed. The landmark civil rights case of Lawrence v. Texas serves as a good example of such three-tiered analysis and demonstrates how ?original? means both old and new in Constitutional interpretation.

Full post as published by Legal Theory Blog on January 24, 2011 (boomark / email).