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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 The Founders' constitution of fixed and permanent meaning has been replaced by the idea of a "living" or evolving constitution.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.
- Sales Rank: #2421530 in Books
- Published on: 2010-06-28
- Original language: English
- Number of items: 1
- Dimensions: 9.21" h x .91" w x 6.14" l, 1.35 pounds
- Binding: Paperback
- 428 pages
Review
"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
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.
Most helpful customer reviews
5 of 6 people found the following review helpful.
Prof McDowell's Language of Law & Am Const
By Paul B. Eaglin
Professor McDowell writes in an engaging manner to make accessible some potentially mind-numbing concepts that underpin the founding of our nation. Whether one agrees or disagrees, his work is a very helpful addition to literature in this area.
1 of 1 people found the following review helpful.
This is all well and good but I would have thought that would have led ...
By P. Schultz
The book begins with some grieving for the aborted nomination of Robert Bork to the Supreme Court, which McDowell argues represents a break with past practices regarding nominees to the Supreme Court, even though there have been more than 20 nominees rejected. This is all well and good but I would have thought that would have led to an investigation of these other rejections to see if or to what degree they did or did not parallel Bork's rejection. But there is no such investigation, leaving one to wonder whether McDowell's claim is persuasive. Besides, it seems to me that Bork was rejected, not because of his judicial philosophy as is claimed, but because of the part he played in what became known as "the Saturday night massacre" during the Nixon administration, when it was Bork who fired Archibald Cox during the Watergate scandal. Paraphrasing a famous quip by Tip O'Neill, "all politics is personal." And memories in D.C. are quite long.
But to more important matters. McDowell's defense of what is labeled "Originalism" is hardly new, and means that the Supreme Court and others should be guided by the original meaning of the Constitution, the intentions of its framers. While not very controversial in the abstract, I am struck by how facile is the thought behind originalism, which seems to mean that once one adopts this stance toward the Constitution that its original meaning will pop up readily and without ambiguity and that it will be sufficient to guide contemporary politics. This seems a wee bit naive, to say the least.
it is also less than persuasive that an "originalist" stance will accomplish what McDowell apparently would like to accomplish, that is, leash the Supreme Court in order to defeat its tendency toward judicial activism. What McDowell and many others who adopt the "originalist" position fail to appreciate is that the problem is not simply this kind of jurisprudence or that kind of jurisprudence. Rather, the problem is the court itself and its constitutional characteristics, something the opponents of the Constitution, the Anti-Federalists, knew quite well. The Supreme Court is composed of justices who are appointed by the President, with the advice and consent of the Senate, hold office for "good behavior" - read "for life" - and have a jurisdiction that as defined by the Constitution is broad and even virtually limitless. And for a long time now, they have controlled, almost completely, the cases they will decide and the number of cases they will decide.
It doesn't take a great mind to ask: Having established a supreme court, whose justices are appointed by the chief or highest executive officer, who is himself clothed with great powers, with the Senate's consent, serving for life, and deciding cases which are of the utmost importance to the well-being of the nation, you are surprised that this institution actively involves itself in the most important affairs of the nation when given the chance? Will such a court appeal to the shy and retiring types who are willing to defer to men long dead or to other officials holding offices some of which do not seem to be as "high" as this court? Or will such a court appeal to those people who seek out power, even great power, in order to use it and use it actively in ways they deem will best serve the nation? The answer seems pretty obvious, as the Anti-Federalists predicted, that it is the latter types who will seek places on such a court and use those places, once obtained, to participate in, to intervene in the most important issues in ways they think will best serve the nation.
And, of course, one does not have to look too far to see that even those justices who identify as "originalists" make decisions that almost always align with their partisan political stances and, in their minds, serve the nation's needs at the moment. This is not to say that these "originalist" justices are disingenuous. But it is to say that it is all too tempting, when exercising great powers, for people, especially ambitious people, those who love fame, to want to use that power to do what is deemed necessary and beneficial for the nation, even if one has to bend the law, even the Constitution, to do so.
The issue of judicial activism cannot then be dealt with adequately by returning to the "original intent" of the Constitution insofar as the Constitution prepared the soil and planted the seed which has grown into the plant that McDowell wants to pare back or even kill. But then, as implied above, I am unconvinced that even the "originalists" want to actually limit the Supreme Court's power and influence.
1 of 1 people found the following review helpful.
What is unique about this scholarly book
By Carl M. Dibble
More than any other scholar writing in English, Gary L. McDowell knows the great and historically influential works on legal, especially constitutional, interpretation. Even the most learned and esteemed legal thinkers of recent decades, like Ronald Dworkin and H. L. A. Hart, have not written about problems of interpretation with the historical depth that McDowell brings to the scholarly discussion. I am not very sympathetic with his philosophic viewpoint or his political opinions, actually, but I think his scholarship generally is of the highest quality. And it is uniquely valuable in the degree to which it brings historical and philosophic perspective to current controversies on how to interpret the U.S. Constitution.
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