Saturday, October 25, 2008
Over the years, some of the posts here at MOJ, by Rick Garnett and others, have concerned constitutional controversies (e.g., capital punishment) and the proper role of the courts--especially the proper role of SCOTUS--is resolving such controversies. I recently posted a paper at SSRN that addresses, among other, related issues, the question what it means, or should mean, to "interpret" the constitutional text. Some MOJ readers may be interested. Here's the SSRN link, where the paper can be downloaded: Perry Paper.
And here's the abstract:
Some Comments on the U.S. Constitution and Judicial Review
Michael J. Perry
Emory University School of Law; University of San Diego - School of Law
Emory Public Law Research Paper No. 08-46
San Diego Legal Studies Paper No. 08-078
This essay is my contribution to a symposium on originalism, to be held at the University of Western Ontario in October 2008. In the essay, I address the question What does it mean - or, at least, what should it mean - to 'interpret' the constitutional text? I then explain that one's answer to that question - even if one's answer is originalist - does not entail any particular answer to two further, distinct questions:
(1) How large a role, or how small, should the U.S. Supreme Court play in specifying - in rendering more determinate - a constitutional norm that is implicated by, but underdeterminate in the context of, one or another constitutional controversy?
(2) In resolving constitutional controversies, should the U.S. Supreme Court always proceed, at least in part, on the basis of what it believes to be the correct interpretation of the constitutional text?
I conclude this essay with a question I have addressed elsewhere, and to which I will eventually return: In specifying entrenched but contextually underdeterminate human rights norms, should the U.S. Supreme Court take the path of Thayerian deference?
Comments and questions welcome - indeed, invited.