I have a new paper out in legal theory. It concerns my first book.
Abstract: Scholars of legal theory must stop using the phrase “original meaning” when suggesting how we should read undefined legal text. Instead, the term “pastology” or “pastological exegesis” should be used. We have an obligation not to mislead our audience. Whenever legal text is undefined and an advocate puts forth a candidate for more specific meaning based upon a marshaling of the past (floor speeches, letters, old dictionaries, etc.), this is an exegetical behavior known in philosophy of law as pastology.
Professor Dennis Coyle has offered a thoughtful and generally positive review of The Flexible Constitution. I wanted to thank him for his generous efforts. I do intend to write a short reply on two substantive points. But I am quite thankful for his effort and consideration.
At Wright State, on September 17th, I'll give a short talk touching upon key themes in three books: (1) Constitutional Disobedience, Louis Michael Seidman; (2) Framed, Sandy Levinson,and (3) The Flexible Constitution, Sean Wilson.
The American Constitution is neither old nor unwise. It's central problem lies only in the way that a certain generation of law school professors are starting to imagine it. The document wasn't considered "old" when Ronald Dworkin was king of the American legal mind. And it isn't the last 15 to 20 years of age that has finally hampered the parchment; it's the fact that American law professors have been having a very poor conversation for nearly two decades. The latent cause of all of this is the rise of originalism. Only if originalism wins does the Constitution become "too old." And one wonders if scholars like Louis Seidman and Sandy Levinson aren't silently rooting for conservative professors to forever bury the life of the Constitution into the dirt of history. For doing this would take away the inherently dynamic and flexible nature of the open-ended and undefined provisions. It would, in a manner of speaking, take away the constitutional imagination -- and in so doing, make Americans falsely think they are stuck with a document that is "old."
Where and When: http://www.wright.edu/events/constitution-day-0
Some may know that The Junto is a group blog about early American history. Today, it talks about using history to make constitutional law, focusing on Gordon Wood, Scott Gerber and my book. http://earlyamericanists.com/2013/04/04/constitutional-interpretation-and-historians/#more-3009
Some may be interested in the full interview on the subject here:http://ssrn.com/abstract=2243254
The interview explains why constitutional judgment should be understood as an artisan judgment, and why history isn't anything special to the venture. The discussion is very relevant to the prejudices that political scientists very often exhibit in this area. In fact, as between the following ideas that are out there -- judging as historic accuracy (originalism), as political attitudes/ideology (cynical view) or as compelling moral principles (Dworkin) -- the idea of connoisseurship presents a new way to move forward. It seems to resolve many of the problems.