About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

15 Harv. J. L. & Pub. Pol'y 141 (1992)
Originalism and the Bill of Rights

handle is hein.journals/hjlpp15 and id is 155 raw text is: ORIGINALISM AND THE BILL OF RIGHTS STEPHEN L. CARTER* I shall begin with a disclaimer. I am a separation of powers scholar. I do not think of myself as a Bill of Rights scholar. I study the Constitution of 1787. My bicentennial was four years ago. This topic for me is something new. In my separation of powers jurisprudence, I often am de- scribed by those who have read my work as an originalist.1 I do not necessarily describe myself that way, but that label will do for the time being. I am something of an originalist, not be- cause I believe that the Founders wanted things that way, but because, for some of the reasons that Gary Lawson2 and Lino Graglia3 have stated, and for some other reasons that I will not bother to explain just now, originalism-at least the right form of originalism-is the only methodology through which courts can solve both the problems of determinacy and justification that Gary Lawson mentions.4 There are many ways of solving the problems of determi- nacy; there are many ways of solving the problems of justification. There are not, however, many ways to solve both simultaneously. Both are solved when courts are able to say that they are enforcing the understanding under which particu- lar constitutional provisions were adopted. I make no claim that the understanding thereby enforced will always be a good thing, only that the judicial decisions that enforce it are more legitimate than those that do not.5 * William Nelson Cromwell Professor of Law, Yale University. 1. See, e.g., Erwin Chemerinsky, Wrong Questions Get Wrong Answers: An Analysis of Profes- sor Carter's Approach to Judicial Review, 66 B.U. L. REV. 47, 50 (1986) (Professor Carter concludes that because the Constitution is clear as to the manner in which government should be structured and operated, the Court should follow an originalist approach in deciding cases related to the political Constitution.); see also E. Donald Elliott, Why Our Separation of Powers Jurisprudence is so Abysmal, 57 GEO. WASH. L. REV. 506 (1989). 2. See Gary S. Lawson, An Interpretivist Agenda, 15 HARV.J.L. & PUB. POL'Y 157, 158-60 (1992). 3. See Lino A. Graglia, How Should Courts Interpret the Bill of Rights?, 15 HARV. J.L. & PUB. PoL'Y 149, 153-55 (1992). 4. See Lawson, supra note 2, at 153-55. 5. For my extended justification for this position, see, for example, Stephen L. Carter, Constitutional Improprieties: Reflections on Mistretta, Morrison, and Administrative Government, 57 U. CHI. L. REv. 357 (1990); Stephen L. Carter From Sick Chicken to Synar: The Evolution and Subsequent De-Evolution of the Separation of Powers, 1987 B.Y.U. L. Rev. 719.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most