Volume 80, Number 6
Commemorating The 100th Anniversary Of Farrand’s Records Of The Federal Convention
INTRODUCTION
- Justice Antonin Scalia and the Long Game -
William K. Kelley · November 2012
80 GEO. WASH. L. REV. 1601 (2012)When President Reagan nominated D.C. Circuit Judge Antonin Scalia to the Supreme Court in 1986, commentators noted that his gregarious and charming personality was an important strength of the nomination, because the new Justice could be expected to charm his way to influence on the Court. The theory was that he would be able to persuade judges to his point of view by force of personality, much like the liberal lion Justice William Brennan had reportedly been able to do for a generation.… Read More
DIALOGUE
- A Dialogue on Statutory and Constitutional Interpretation -
The Honorable Antonin Scalia & John F. Manning · November 2012
80 GEO. WASH. L. REV. 1610 (2012)In recent years, the Supreme Court has placed increasing empha- sis on the meaning of the enacted text not only in statutory cases, but also in constitutional cases. One might say that this trend merely re- flects a commonsense approach to interpretation. In a Government of Laws, one in which the people and agents of the people owe fidelity to democratically enacted texts, it would perhaps seem uncontroversial to suggest that an interpreter’s job entails determining what those texts convey to a reasonable person—one conversant with our social linguistic conventions.… Read More
ARTICLES
- How Bad Were the Official Records of the Federal Convention? -
Mary Sarah Bilder · November 2012
80 GEO. WASH. L. REV. 1620 (2012)The official records of the Constitutional Convention of 1787 have been neglected and dismissed by scholars for the last century, largely to due to Max Farrand’s criticisms of both the records and the man responsible for keeping them—Secretary of the Convention William Jackson. This Article disagrees with Farrand’s conclusion that the Convention records were bad, and aims to resurrect the records and Jackson’s reputation. The Article suggests that the endurance of Farrand’s critique arises in part from misinterpretations of certain procedural components of the Convention and failure to appreciate the significance of others, understandable considering the inaccessibility of the official records.… Read More
- The Case for Original Intent -
Jamal Greene · November 2012
80 GEO. WASH. L. REV. 1683 (2012)This Article seeks to situate the constitutional culture’s heavy reliance on the Convention debates within an academic environment that is generally hostile to original intent arguments. The Article argues that intentionalist-friendly sources like the Convention records and The Federalist remain important not because they supply evidence of original meaning but rather because the practice of advancing historical arguments is best understood as a rhetorical exercise that derives persuasive authority from the heroic character of the Founding generation. This exercise fits within a long tradition of originalist argument and need not be abandoned in the quest for a more perfect originalism.… Read More
- A Concise Guide to the Records of the Federal Constitutional Convention of 1787 as a Source of the Original Meaning of the U.S. Constitution -
Gregory E. Maggs · November 2012
80 GEO. WASH. L. REV. 1707 (2012)Judges, lawyers, scholars, and others often cite the records of the Federal Constitutional Convention of 1787 as a source of the original meaning of the Constitution. This Article provides guidance regarding this practice. The Article describes the Convention and the records of the proceedings. The Article next explains, with examples, how these records might supply evidence of the original meaning of the Constitution. Finally, the Article considers six common grounds for impeaching claims about the original meaning that rely on the records of the Convention. While each of the six grounds has some merit, each is also subject to limitation and counterargument.… Read More
- The Role of the Philadelphia Convention in Constitutional Adjudication -
John F. Manning · November 2012
80 GEO. WASH. L. REV. 1753 (2012)Max Farrand’s Records of the Federal Convention of 1787 shed light on the intricacies of the debates of the framers over the text of the Constitution. They do not, however, provide authoritative evidence of constitutional meaning. The Philadelphia Convention, after all, was conducted in secret, and the ratifiers, operating in thirteen distinct conventions in culturally and politically diverse states, had no access to its notes. Attempts to glean original intent or meaning from the Records face even greater challenges than attempts to discern a single, collective legislative intent from pieces of legislative history.… Read More
- The Effect (or Non-Effect) of Founders on the Supreme Court Bench -
Maeva Marcus · November 2012
80 GEO. WASH. L. REV. 1794 (2012)Eleven of the first twelve Justices to serve on the Supreme Court participated in the creation and ratification of the Constitution. Their active participation in the constitutional process shaped their perspectives of both federal law and the Constitution. Through a series of examples, this Article shows that the initial group of Justices emerged from the Founding period with remarkably similar views of the purposes for which the Constitution was established, but that differences arose among them on specific points of constitutional interpretation. Reviewing early Supreme Court opinions and grand jury charges written by the Justices indicates how participating in the creation and ratification of the Constitution permitted the Court to speak with a unified voice on such things as the importance of the law of nations and the need for judicial review.… Read More
- Constitutional Backdrops -
Stephen E. Sachs · November 2012
80 GEO. WASH. L. REV. 1813 (2012)The Constitution is often said to leave important questions unanswered. These include, for example, the existence of a congressional contempt power or an executive removal power, the role of stare decisis, and the scope of state sovereign immunity. Bereft of clear text, many scholars have sought answers to such questions in Founding-era history. But why should the historical answers be valid today, if they were never codified in the Constitution’s text?
This Article describes a category of legal rules that weren’t adopted in the text, expressly or implicitly, but which nonetheless have continuing legal force under the written Constitution.… Read More
PANEL
- A Dialogue with Federal Judges on the Role of History in Interpretation -
Amanda L. Tyler, The Honorable Frank H. Easterbrook, The Honorable Brett M. Kavanaugh, The Honorable Charles F. Lettow, The Honorable Reena Raggi, The Honorable Jeffrey S. Sutton & The Honorable Diane P. Wood · November 2012
80 GEO. WASH. L. REV. 1889 (2012)A Discussion Held on November 4, 2011, at The George Washington University Law School.… Read More