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The foundation of the American legal system and democratic culture is its longstanding written Constitution. However, a contentious debate now exists between originalists, who employ the Constitution’s original meaning, and Nonoriginalists, who argue for a living constitution interpretation. The first natural law justification for an originalist interpretation of the American Constitution, Originalism’s Promise presents an innovative foundation for originalism and a novel description of its character. The book provides a deep, rich, and practical explanation of originalism, including the most-detailed originalist theory of precedent in the literature
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Book ID Asin: 110846873X
Book Title: Originalism’s Promise: A Natural Law Account of the American Constitution
Book Author: Lee J. Strang
Book Format and Price:
Book Format Name: Kindle
Book Format Price: $27.99
Book Format Name: Hardcover
Book Format Price: $116.00
Book Format Name: Paperback
Book Format Price: $36.99
Book Price: $36.99
Book Category: Books, Law, Constitutional Law and unknown
Book Rating: 12 ratings
Originalism’s Promise: A Natural Law Account of the American Constitution by Lee J. Strang Book Review
Name: Amazon Customer
Rating: 4.0 out of 5 stars
Title: A book on Originalism worth picking up to read
Date: Reviewed in the United States 🇺🇸 on January 13, 2021
Review: All in all, it is a commendable piece of scholarship by Professor Strang. Because he summarizes existing scholarship on originalism so well at the beginning, the book provides a welcome introduction for those new to the subject. It also advances more complex arguments for those looking for more than an introduction. It also can be viewed as a fusionist defense of originalism.
Professor Strang adeptly summarizes “originalism” and the main arguments for its use in constitutional interpretation. He attempts to address several arguments for those who advocate a non- originalist interpretation. One of his stronger arguments for originalism is that it forces constitutional change to be pushed through the constitutional amendment process when the constitutional framework needs to be adjusted. In passing an amendment, the change secures greater democratic legitimacy than a new interpretive pronouncement from the judicial branch.
His central argument is that an originalist interpretation of the constitution secures the common good as defined by Aristotle, which means that it promotes human flourishing. My concern with setting such a high bar for originalism is that it allows others to undermine it if they could make a successful argument that originalism no longer secures the common good. There are plenty of arguments for originalism that don’t require it to be put on such a high pedestal.
The book has some distracting comments that detract from its central arguments. Two examples that come to mind are the reference to Letters of Marque on page 48 being unknown to the founding generation and the Senate screening judge litmus test/Ivy School temptation on page 147. I will not dwell on these and others excessively other than to say that Professor Strang would have strengthened his arguments if these had been omitted.
Name: Dave F.
Rating: 4.0 out of 5 stars
Title: Where’s recognition of Harry Jaffa?
Date: Reviewed in the United States 🇺🇸 on February 23, 2021
Review: Harry Jaffa made a career of stating and defending the natural law account of the Constitution, staring in 1958 with Crisis of the House Divided, continuing in his writings and culminating in A New Birth of Freedom (2018). Anyone interested in Constitutional originalism should consult his work and acknowledge it.
Name: James A. McDermott
Rating: 5.0 out of 5 stars
Title: Life, vis a’ vis liberty and the pursuit of happiness, is NOT via a “living” Constitution!
Date: Reviewed in the United States 🇺🇸 on April 29, 2020
Review: “Originalism makes good on [its] promise through its faithfulness to the Constitution’s original meaning, … .” (p*310). “Originalism is the theory of interpretation that identifies the Constitution’s original meaning as its authoritative meaning. This meaning is the text’s public meaning when that text was ratified.” (p*1)
“This government is acknowledged by all to be one of enumerated powers. * * * . That principle is now universally admitted.” M’CULLOCH v. MARYLAND 17 U.S. (4 Wheat.) 316, 405 (1819). “In our federal system, the National Government possesses only limited powers.” NFIB v. SEBELIUS 567 U.S. 519, 533 (2012). Chief Justice Roberts, alas, moved Congress out of its own way; that’s a different subject. “[A]ny federal government act must be justified by reference to an enumerated power.” P*71 (see n. 109)
“In our society, absent a compelling reason, judgments of the democratically elected legislature are entitled to greater authority than judgments by unelected entities.” P*89 “In a government which is emphatically styled a government of laws, the least possible range ought to be left for the discretion of the judge.” P*116 (quoting Wm. Cranch) Judges’ “duty and [ ] business is not to make the law, but to interpret and apply it” p*117 (quoting Jas. Wilson)
Despite the foregoing considerations (merely a few among a plethora of considerations which Prof. Strang delineates via ORIGINALISM’S PROMISE), the Supreme Court of the United States’ jurisprudence has not been, during a period of more than four score years [(i.e., New Deal through OBERGFELL v. HODGES (2015)], originalist. Instead, an ostensible “zone of privacy” purportedly found via “penumbras” and “emanations” of what is enumerated (expressly stated via the Constitution of the United States), became the initial means to insolent jurists’ ends.
Bastardization of protection of liberty via the Fourteenth Amendment quickly ensued, despite the readily discernable original meaning thereof; such has been followed by audacious misuse of the Ninth Amendment. That which is enumerated, along with our nation’s jurisprudence until nearly a century ago (which was consistent with original meanings which were employed by those who drafted , and ratified, the Constitution and Amendments thereto), became debased and, eventually, subordinate to ostensibly implied rights.
“Without originalism to cabin the Supreme Court — to maintain the amendment process as the means of constitutional change –the amendment process has been reduced to relatively minor changes. All the real action occurs at the Supreme Court.” P*175 “Originalism would restore the amendment process to its proper place as the exclusive mechanism of constitutional change.” P*176 Of course, “Congress[‘ ] expansion [of] protection beyond the Fourth Amendment’s original meaning” (p*218) is an example of a Constitutional response to original meaning being deemed to be inadequate protection [contrary to KATZ v. UNITED STATES (1967) overruling OLMSTEAD v. UNITED STATES (1928), an originalist opinion].
Justice Clarence Thomas seemed to concede within the eighth footnote to his concurring opinion in UNITEDSTATES v. LOPEZ (1995) that “[c]onsiderations of stare decisis and reliance interests may convince us that we cannot wipe the slate clean” [specifically therein, regarding rampant nonoriginalist (anti-Constitutional) Commerce Clause precedent)]. As LOPEZ itself demonstrates, however, the Supreme Court of the United States is indeed able to Constitutionally correct mistakes made by the Court.
Among Prof. Strang’s contributions to advancement of Originalism via ORIGINALISM’S PROMISE is his blueprint (so to speak) for handling nonoriginalist precedent. The case made thereby for not overruling BROWN v. BOARD OF EDUCATION (1954) is as compelling as is the case made thereby for overruling ROE v. WADE (1973). Such aspect of ORIGINALISM’S PROMISE, in-and-of-itself, well-distinguishes the book.
No less compelling is Prof. Strang’s natural law, Aristotelian analysis which delineates how nonoriginalist (anti — Constitutional) judges, to an exponential degree compared to drivers who drive on freeway shoulders when traffic is slow-moving, diminish their character, and, diminish the Rule of Law and concomitant social coordination, and, securing of the common good and human flourishing. Law, for such lawless, unfaithful, oath-disdaining judges, is ad hoc. Neither attorneys, litigants, nor citizens in general, may know what the law is until (an) unelected judge(s) say(s) what the law is, albeit without regard to the original public meaning of the pertinent portion(s) of the Constitution of the United States.
“Nonoriginalism, by definition, uses some other meaning, chosen by someone other than the Ratifiers; it is not the original meaning the Framers and Ratifiers employed to draft and authorize the Constitution. The fact of the unique Framing and Ratification of our Constitution is superfluous in nonoriginalist methodologies — it does not do any analytical work in interpretation. Instead, the Constitution’s text is an historical accident — a given — a vessel which must be filled with the meaning of the interpreter’s choice.” P*293
“In sum, the Constitution’s original meaning is the only means to access the written Constitution’s authoritative, prudential, coordinating decisions. Utilizing other meanings undermines the Framers’ and Ratifiers’ prudential judgments, rejects their authority, and destabilizes the social coordination established by the Constitution.” P*290
p*__: Page reference to ORIGINALISM’S PROMISE
Name: Carl Haglund
Rating: 1.0 out of 5 stars
Title: Poorly written and difficult to read
Date: Reviewed in the United States 🇺🇸 on May 11, 2022
Review: This book is poorly written. It’s overly complex and reads similar to a doctoral dissertation. Here’s just a common sample from the text, “My conception of original meaning originalism identifies the Constitution’s original meaning as possessing the same content as its original intent and the meaning derived from the original methods” (p 50).
And that’s one of the clearer sentences. If I wasn’t required to read it for a class, I’d stop. I keep getting distracted wondering how often the author can insert the word “original” into a single sentence.
