The theory of originalism is now well into its second wave. Originalism
first came to prominence in the 1970s and 1980s as conservative critics
reacted to the decisions of the Warren Court, and the Reagan
Administration embraced originalism as a check on judicial activism. A
second wave of originalism has emerged since the late 1990s, responding to
earlier criticisms and reconsidering earlier assumptions and conclusions.
This Article assesses where originalist theory currently stands. It outlines
the points of agreement and disagreement within the recent originalist
literature and highlights the primary areas of continuing separation
between originalists and their critics.
In Part I of this Article, I describe four aspects of the New Originalism: First, New Originalism is about identifying the original public meaning of
the Constitution rather than the original Framers’ intent. Second, the interpretive
activity of identifying the original public meaning of the text is a
purely descriptive empirical inquiry. Third, there is also a normative tenet
of the New Originalism that contends that the original public meaning of
the text should be followed. Finally, distinguishing between the activities of
interpretation and construction identifies the limit of the New Originalism,
which is only a theory of interpretation. In Part II, I then discuss how
originalism can influence the outcome of such cases as District of Columbia
v. Heller, McDonald v. City of Chicago, and National Federation of Independent
Business v. Sebelius (NFIB). I suggest that, so long as there are
justices who accept the relevance of original meaning, originalism can exert
a kind of “gravitational force” on legal doctrine even when, as in
McDonald and NFIB, the original meaning of the Constitution appears not
to be the basis of a judicial decision.
Constitutional interpretation is the activity that discovers the
communicative content or linguistic meaning of the constitutional text.
Constitutional construction is the activity that determines the legal effect
given the text, including doctrines of constitutional law and decisions of
constitutional cases or issues by judges and other officials. The
interpretation–construction distinction, frequently invoked by contemporary
constitutional theorists and rooted in American legal theory in the
nineteenth and twentieth centuries, marks the difference between these two
This Article advances two central claims about constitutional
construction. First, constitutional construction is ubiquitous in
constitutional practice. The central warrant for this claim is conceptual: because construction is the determination of legal effect, construction
always occurs when the constitutional text is applied to a particular legal
case or official decision. Although some constitutional theorists may prefer
to use different terminology to mark the distinction between interpretation
and construction, every constitutional theorist should embrace the
distinction itself, and hence should agree that construction in the stipulated
sense is ubiquitous. Construction occurs in every constitutional case.
The second claim is more substantive and practical. In some cases,
construction can simply translate the plain meaning of the constitutional
text into corresponding doctrines of constitutional law—we might call this
strict construction. But in other cases, the constitutional text does not
provide determinate answers to constitutional questions. For example, the
text may be vague or irreducibly ambiguous. We can call this domain of
constitutional underdeterminacy the construction zone. The second claim is
that the construction zone is ineliminable: the actual text of the U.S.
Constitution contains general, abstract, and vague provisions that require
constitutional construction that goes beyond the meaning of the text for
their application to concrete constitutional cases.
Central to the new originalism is the distinction between constitutional
interpretation and constitutional construction. Interpretation tries to
determine the Constitution’s original communicative content, while
construction builds out doctrines, institutions, and practices over time.
Most of the work of constitutional lawyers and judges is constitutional
The distinction between interpretation and construction has important
consequences for constitutional theory. In particular, it has important
consequences for longstanding debates about how lawyers use history and
should use history.
First, construction, not interpretation, is the central case of
constitutional argument, and most historical argument occurs in the
Second, although people often associate historical argument with
originalist argument, the actual practices of lawyers and judges
demonstrate that nonadoption history is as important as adoption history to
Third, there is no single modality of “historical argument.” Instead,
history is relevant to many different kinds of constitutional argument. One
important task of this Article is to rethink the familiar model of modalities
of argument offered by Philip Bobbitt and Richard Fallon; and to offer a
different version that better reflects the multiple ways that lawyers and
judges actually use history in constitutional argument.
Fourth, according to the new originalism, arguments about adoption
history can offer mandatory answers only with respect to questions of
interpretation; they cannot do so for questions of constitutional
construction. That is, new originalists accept an originalist model of
authority only with respect to questions of interpretation, not construction.
Yet new originalists, like most lawyers, often make appeals to adoption
history in constitutional construction. This raises the obvious question why
American judges and lawyers should use or accept arguments from
adoption history in constitutional construction and only sometimes find
them persuasive. The originalist model of authority by itself cannot answer
Fifth, we can solve this puzzle by paying careful attention to how lawyers
and judges actually use adoption history. In constitutional construction,
“originalist” argument is not a single form of argument. It involves many
different kinds of argument, and it often appeals to ethos, tradition, or
“culture heroes”—honored authorities who are treated as objects of
respect, wisdom, and emulation.
In fact, in constitutional construction, arguments from adoption history
are often hybrid; they appeal to multiple modalities of argument
simultaneously. Most arguments about the Founding period usually also
make implicit appeals to one of three modes of argument: national ethos,
political tradition, or honored authority.
This hybrid nature gives arguments from adoption history their
distinctive character in constitutional construction. Despite the dominance
of original public meaning originalism in originalist theory, lawyers
actually use adoption history quite differently from the way that academic
Sixth, precisely because originalist arguments (in constitutional
construction) generally appeal to ethos and tradition, they will normally not
be persuasive unless the audience can plausibly accept the values of the
adopters as their own, or can recharacterize them so that they can plausibly
accept them as their own. When these values appear too alien or
irrelevant, lawyers generally avoid making originalist arguments. Thus,
lawyers do not feel an obligation to consult adoption history in every case;
and when they do, they do not accept the results of adoption history as
binding on them if there are other considerations.
Seventh, in constitutional construction, adoption history is a valuable
resource available to originalists and nonoriginalists alike. Indeed, once
they understand how originalist–style arguments actually operate in the
construction zone, nonoriginalists and living constitutionalists should have
no qualms about appealing to adoption history and making originalist
arguments. Using such arguments does not undermine living
constitutionalist theories of construction in the least. Refusing to employ
adoption history serves no important theoretical principle and has no
significant rhetorical advantages; indeed, all it does is limit lawyers’ ability
to persuade their fellow citizens through calling on shared traditions and
invoking powerful symbols of cultural memory.
The national security deference debate has reached a stalemate. Those
favoring extensive deference to executive branch national security decisions
celebrate the limited role courts have played in reviewing those policies.
The executive, they contend, is constitutionally charged with such decisions
and structurally better suited than the judiciary to make them. Those who
bemoan such deference fear for individual rights and an imbalance in the
separation of powers. Yet both sides assume that the courts’ role is
minimal. Both sides are wrong.
This Article shows why. While courts rarely intervene in national
security disputes, the Article demonstrates that they nevertheless play a
significant role in shaping executive branch security policies. Call this the
“observer effect.” Physics teaches us that observing a particle alters how
it behaves. Through psychology, we know that people act differently when
they are aware that someone is watching them. In the national security
context, the executive is highly sensitive to looming judicial oversight in the
national security arena, and establishes or alters policies in an effort to
avert direct judicial involvement. By identifying and analyzing the observer
effect, this Article provides a more accurate positive account of national
security deference, without which reasoned normative judgments cannot be
made. This Article makes another contribution to the literature as well. By
illustrating how the uncertain, but lurking, threat of judicial decisions spurs
increasingly rights–protective policy decisions by the executive, it poses a
rejoinder to those who are skeptical that law constrains the executive.
Governments around the world raise significant amounts of capital by
issuing sovereign bonds in international financial markets. These bonds
are typically purchased and traded by foreign investors who seek a
profitable return on their investment. The issuing country incurs sovereign
debt, which it must repay over a predetermined period of time.
Occasionally, sovereigns—typically emerging market governments—become unable or unwilling to repay their sovereign debt.
A country’s ability to repay its debt is difficult to assess given the
multitude of nonfinancial factors that affect the assessment. As a result,
investors are vulnerable to opportunistic defaults which can deprive them
of their investment. Additionally, investors cannot collect on their
investment through bankruptcy proceedings because a country cannot
declare bankruptcy. The financial markets have responded to this
challenge with a variety of contractual mechanisms aimed at facilitating a
debt restructuring, which will simultaneously lower the sovereign’s debt
burden while ensuring that investors receive payment on their investment.
Unfortunately, the contractual mechanisms currently utilized in sovereign
bond contracts have proven to be inadequate.
This Note begins by explaining sovereign debt and the major problems
with the current international sovereign bond market. Next, this Note
explores the global community’s various efforts to address these problems
thus far and explains why these solutions have proven inadequate.
Ultimately, this Note proposes a new contractual mechanism that provides
for the creation and use of a new type of trustee to monitor, enforce, and
renegotiate sovereign bonds.
Chapter 7 bankruptcy is designed to provide a financially distressed
debtor with a “fresh start.” Towards that end, an individual debtor’s debts
are typically discharged during the case. A creditor has only a short
window of time in which to object to the dischargeability of its claims. This
bar date can only be extended for cause and upon the application of a
“party in interest.” Occasionally, a trustee will move for such an extension
on behalf of the creditors. There is a split, however, between the Fourth
and Sixth Circuits regarding whether a trustee is a “party in interest” and,
therefore, whether the trustee has standing to move for an extension.
This Note analyzes the trustee’s role and interests in a Chapter 7
bankruptcy case, as well as the policy interests underlying the U.S.
bankruptcy system. This Note concludes that a trustee is not a “party in
interest” because a trustee does not have a financial, practical, or
statutorily imposed interest in the dischargeability of an individual debt.
Therefore, this Note finds that the Fourth Circuit is correct in holding that
a trustee does not have standing to move for an extension of the
nondischargeability bar date.
For nearly thirty years, courts have looked to the U.S. Supreme Court’s
ruling in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. when reviewing a challenge to an agency’s interpretation of statutory
language and determining whether deference is appropriate. Despite
Chevron’s longstanding role as one of administrative law’s most important
legal doctrines, no specification exists as to whether judicial deference is
required when an agency interprets language outside the scope of its
expertise. As a result, the Second and Third Circuits have split on the issue
of whether the Bureau of Immigration Appeals’ (BIA) interpretation of the
term “aggravated felony,” a phrase drawn from criminal law, deserves a
traditional Chevron analysis.
This Note addresses the conflict and proposes a model of Chevron’s
framework that permits courts to remain flexible when considering an
agency’s nontraditional expertise, an outcome contemplated by Chevron’s
theoretical framework and the Court’s ruling in Chevron itself. Ultimately,
this Note resolves the split in favor of the application of Chevron deference
to the BIA’s interpretation of language drawn from criminal law, despite
the agency’s traditional expertise in immigration law.
In corporations, like most other business associations, fiduciary duties
exist to deter management from abusing their power over the owners’
property. In Delaware limited partnerships and limited liability companies,
this protection can be waived in the operating agreement. This Note
explores the effects of retaining or waiving fiduciary duties and how this
plays out in the interpretation of operating agreements. It argues that
default fiduciary duties exist for limited liability companies and limited
partnerships, including those that are member managed, and it proposes a
combination of disclosure and signature requirements from each limited
partner or member in order for waiver of fiduciary duties to be effective.
Confiscating condoms from suspected sex workers leaves them at risk for
HIV/AIDS, other sexually transmitted diseases, and unwanted pregnancy.
Yet, police officers in New York, Washington, D.C., and Los Angeles collect
condoms from sex workers to use against them as evidence of prostitution.
Sometimes, the condoms are taken solely for the purpose of harassment.
These actions put sex workers at risk of contracting sexually transmitted
diseases because they may continue to engage in sex work without using
In the landmark case of Griswold v. Connecticut, the U.S. Supreme Court
established a fundamental privacy right in the use and access of
contraceptive devices. While this right has been examined in the context of
married couples and individuals, it has not been applied to the confiscation
of condoms, a contraceptive device, by police officers. This Note shows
that by taking condoms from suspected sex workers, police officers and
departments are actually violating sex workers’ constitutional right to
privacy, and, therefore, the practice must be abandoned.
The federal registration statute, codified at 28 U.S.C. § 1963, permits a
judgment creditor to register his or her judgment in another state by simply
filing a copy of the judgment with the clerk of the registering court.
Registration is permitted when the judgment becomes final by appeal, when
the time to appeal expires, or when the court that entered the judgment
orders registration for good cause shown. The majority of courts have
interpreted good cause as a showing that the judgment debtor lacks assets
in the forum jurisdiction to fulfill the judgment, but possesses substantial
assets in the registering jurisdiction. District courts are split, however, on
whether there must be a pending appeal before registration can be ordered.
Registration gives the judgment creditor power to create a lien on the
judgment debtor’s property in another district. The effect of the registered
judgment depends on a state’s laws regarding liens. Liens in some states
may reach personal property, creating the potential for a registered
judgment to have harsh effects on the debtor’s livelihood and placing
restrictions on the alienability of real property. The posting of a
supersedeas bond can stay the enforcement of a judgment and alleviate the
need for registration.
This Note argues that a judgment creditor should be permitted to register
her judgment without waiting for the judgment debtor to file an appeal.
However, a court should have discretion to consider whether permitting
registration when the judgment debtor has not yet posted a supersedeas
bond would cause irreparable harm to a good faith debtor, and if so, grant
the debtor time to post a bond.