"The Most Sacred Rule of Interpretation": The Language of Law and the Moral Foundations of Originalism

FAIN: FB-53215-07

Gary L. McDowell
University of Richmond (Richmond, VA 23173-0001)

This project is an exploration of the philosophic and political grounds of originalism as a method of constitutional interpretation, beginning with the theories of language in the works of Thomas Hobbes and John Locke and ending with an analysis of the modes of interpretation in the jurisprudence of Justice Joseph Story and Chief Justice John Marshall (whose view that the judicial search for original intention is "the most sacred rule of interpretation" gives the project its title).

Associated Products

The Language of Law and the Foundations of American Constitutionalism (Book)
Title: The Language of Law and the Foundations of American Constitutionalism
Author: Gary L. McDowell
Abstract: 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 The Founders' Constitution of fixed and permanent meaning has been replaced by the idea of a 'living' or evolving constitution.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.
Year: 2010
Primary URL: http://www.cambridge.org/9780521140911
Primary URL Description: Cambridge University Press
Publisher: Cambridge University Press
Type: Single author monograph
ISBN: 0521192897

---