Andre LeDuc

The review essay begins by analyzing four central elements in Lessig’s account of the fidelity and constraint of meaning and role, the nature of social meaning and understanding, and the nature and role of constitutional translation and two-step originalism. First, the introduction of the concept of fidelity to role fundamentally changes Lessig’s theory. Fidelity to role not only provides a second, important source of constitutional decision; the introduction of the concept of fidelity to role changes how the original concept of fidelity to meaning functions within Lessig’s theory. Second, the introduction of the concept of fidelity to role fundamentally changes the nature of Lessig’s constitutional theory, from a traditional, systematic, holistic account to a pluralist account. Third, this change, while probably the most creative and profound part of Fidelity and Constraint (and perhaps the most creative contribution to constitutional scholarship in the past several decades) is so ...

Perhaps the hottest front in the half-century-old debate over originalism turns on the introduction of semantics, pragmatics, and other techniques from the philosophy of language and linguistic theory. While in some ways these arguments simply build on the now familiar distinction between interpretation and construction defended by the New Originalism, the newest of the New Originalists purport to break new ground in the debate. The originalists argue that they have rehabilitated originalism so as to avoid the criticisms that had been leveled against earlier versions, including those leveled against earlier versions of New Originalism. The newest critics argue that the sophisticated tools of linguistic philosophy, when properly applied in their hands, offer new and decisive challenges to originalism, including the newest of the New originalisms. While the arguments on both sides of the debate have been welcomed as a new and exciting intellectual development by the academy, this arti...

This Article completes a therapeutic treatment of the originalism debate. The long-running debate over constitutional originalism is pathological, more confused than insightful or important. This Article completes the course of therapy by sketching the constitutional discourse and practice we may hope for after the debate over originalism is transcended and left behind. In so doing, it disarms the final defense of the participants in that debate in that they have no alternative. Only by sketching what that alternative is can its existence be proved, and the ideopolises of the protagonists finally be reconstructed. This Article shows the constitutional theory and criticism we may aspire to if we are freed of the bonds of the debate over originalism and its underlying assumptions.First, the Article outlines what a post-debate constitutional decision process would look like if the judicial decision makers no longer felt compelled to articulate their opinions in the vocabulary of that d...

The constitutional law of takings has been recognized to be in substantial disarray for more than half a century. The legal academy has repeatedly called out the manifold problems in the law and offered a number of competing, highly theoretical, and inconsistent approaches to reform our Takings Clause jurisprudence. The academy congratulates itself on the brilliance of its constitutional thinkers and the importance of their contributions. Still, the debate between competing theories of the Just Compensation Clause has remained unresolved and the law in disarray. This article resolves the apparent paradox in the conflict between the shining brilliance of the academy and the stubborn confusion of our law.<br><br>Frank Michelman and Bruce Ackerman argue for a theory of just compensation founded on a liberal political theory. Richard Epstein defends a radically different theory based upon a libertarian political theory. Neither foundational theory bears much resemblance to c...

Book Review: Richard H. Fallon, Jr., Law and Legitimacy in the Supreme Court (2018) Fallon departs from the traditional traces of our contemporary constitutional theory. He is redirecting us to new questions about the Constitution, the role of the Court, and the nature of the legitimacy of the Republic. By focusing on the foundations for the moral legitimacy of the Court and the Constitution, Fallon would shift our constitutional discourse away from the sterile debate over constitutional interpretation and originalism and other theoretical issues. That would be a signal achievement in its own right. By casting the discussion of legitimacy in the fundamental new terms that look expressly to our moral and political theory and our constitutional practice—rather than in the narrower, traditional terms of the countermajoritarian dilemma and the role of, and limits on, judicial discretion—Fallon tacitly challenges the dominant positivism that has informed both most originalism and the com...

The debate over originalism illuminates the relationship of philosophy to constitutional law. That relationship warrants attention for two principal reasons. First, the protagonists in the debate characterize the role of philosophy and philosophical premises in constitutional law very differently. Some assert that philosophy is irrelevant to constitutional law; others assert that it plays an essential role, and that it reveals the fundamental flaws of the originalist position. Assessing those competing claims is inherently valuable. Second, the tacit reliance upon philosophical premises has introduced confusion and controversy into the debate over originalism. A careful analysis of the originalism debate shows that the philosophical stances taken on both sides of that debate are implausible. Without the philosophical foundations premised by the protagonists in the debate, the controversy itself dissolves. That’s the more important reason.

In this article I explore six of the most fundamental disagreements between originalism and its critics over originalism’s implications. These implications — and the implications of the critics’ alternatives — figure prominently in the arguments advanced in the debate. Reconstructing these arguments in their strongest possible form permits the confusion and misdirection in the debate over originalism to emerge. First, originalism argues that it best comports with our republican democracy. Judicial review, performed by unelected judges with lifetime appointments, may appear inconsistent with the fundamental principles of our democratic republic. Originalism argues that deference to the original understandings or expectations with respect to the Constitution answers this challenge. The critics offer three principal replies to that claim. First, the originalist strategy of finding the original understanding and intentions with respect to the Constitution is rejected as undoable. Second...

I have previously argued that ontology and the philosophy of language have been misused or misunderstood in the debate over originalism. That analysis emphasized the unstated and often unacknowledged role such philosophical premises play. Because the claims of political philosophy are often made more expressly and because the appeal to political philosophy has been an important part of our constitutional discourse at least since the Federalist Papers, it may appear that political philosophy plays an important constructive role in our constitutional decisional discourse.It does not.In this article I explore the role of political philosophy in the debate over originalism and extend the analysis of my earlier work. I defend five theses. First, originalism relies on political philosophical claims to ground its claims, occasionally expressly. In particular, originalism begins with political philosophy in its account of the social contract as the source of the Constitution’s binding force...

The long-running debate between originalism and competing accounts of the Constitution has unfolded with little attention to classic American jurisprudential concepts of legal positivism and legal pragmatism. In this syncretic article, I explore how these jurisprudential and theoretical strands fit together. I also explore several lessons we can learn about legal positivism and legal pragmatism and one critical lesson we can learn about the debate about originalism, if we contextualize the debate over originalism in that part of the space of reasons.First, positivist and natural law originalisms are substantially similar in their substantive constitutional content. Originalism critics — both those who embrace positivism and those who embrace natural law — similarly share substantially congruent substantive criticisms of originalism. These parallels raise an important question about the significance of the distinction between legal positivism and natural law. The debate over original...

Because the participants in the debate over constitutional originalism generally understand the controversy to be over a matter of the objective truth of competing interpretations of the Constitution, they do not believe that their mission is to persuade the other side. When what is at stake is a matter of objective truth, subjective opinions are of less moment.This Article begins the long overdue transcendence of our increasingly fruitless and acrimonious debate over originalism by articulating the tacit philosophical premises that make the debate possible. It demonstrates that originalism, despite its pretensions to common sense and its disavowal of abstruse philosophical analysis, is tacitly committed to three key ontological and linguistic premises. First, language represents the world. Second, propositions or statements are true if they accurately (truly) represent that world. Thus, propositions of constitutional law represent the constitutional world. As a consequence, proposi...

The seemingly interminable tacit assumptions about the nature of language and the ontological status debate over originalism is grounded on of the Constitution. It assumes that language represents the world, that the Constitution is something that has an ontologically independent existence, and that propositions of constitutional law are true if they accurately represent the objective Constitution. This Article offers a radical critique of those apparently obvious, commonsensical premises. It presents an anti-representational, anti-foundational challenge to the premises underlying the debate over originalism.First, building on the work of Richard Rorty and Robert Brandom in philosophy and Philip Bobbitt and Dennis Patterson in jurisprudence, it outlines how we might move beyond the notion of an ontologically independent, objective Constitution. The alternative is to understand our Constitution as constituted by our constitutional practices, particularly our practices of constitution...