85 CBJ 405. Book Review.

• Author: James E. Wildes

Connecticut Bar Journal

Volume 85.

85 CBJ 405.

Book Review

Connecticut Bar JournalVolume 85, No. 4, Pg. 108December 2011Book Review Constitutional Originalism: A DebateJames E. Wildes(fn*)Robert W. Bennett and Lawrence B. Solum, Cornell University Press, Ithaca and London, 2011. 210 pages.

At an American Bar Association's meeting in July 1985, Attorney General Edwin Meese spoke about constitutional interpretation. He stated that the framers of the United States Constitution chose their words carefully and that the United States Supreme Court should determine what that meaning was.(fn1) Meese insisted that the framers of the Constitution had intended that the document be interpreted as it was understood in 1789.(fn2) Short thereafter, Justice William Brennan, in a public speech, characterized Meese's theory as a view that feigned self-effacing deference to the specific judgments of those who forged the Constitution; however, in truth it was little more than "arrogance cloaked as humility."(fn3) Brennan contended that it was arrogant to believe that from a present day vantage point that the intent of the framers could be accurately gauged and applied to specific contemporary issues.(fn4) The passage of time has not diminished this schism in constitutional jurisprudence.

Constitutional Originalism is a welcome and balanced discussion of the competing legal theories of constitutional interpretation; namely, "originalism" and its counterpart "living constitutionalism."(fn5) Robert W. Bennett, a law professor and former dean of Northwestern University, probes both doctrines and suggests that living constitutionalism is ultimately a more satisfactory prism through which constitutional issues should be viewed. on the other hand, Lawrence B. Solum, a professor of law and philosophy as well as an associate dean at the University of Illinois College of Law, argues that constitutional originalism serves as a better compass in constitutional interpretation.

Solum acknowledges that although many decisions of the Warren Court, most notably Griswold v. Connecticut(fn6) and Brown v. Board of Education,(fn7) are almost universally lauded, other decisions were and remain controversial. Solum explains that originalism began to materialize in the 1970s as an alternative to the counter-majoritarian difficulty exemplified by the Warren Court. Solum states that origi-nalism maintains that the Supreme Court should restrain itself by following the original intentions of the framers. Solum notes that criticisms of originalism have focused on the multiple authors of a text that must function across decades and centuries. According to Solum, Justice Antonin Scalia has suggested that originalism is stronger when the focus is on the original public meaning of the text, rather than on the original intentions of the framers. Solum asserts that even where the focus is on the original public meaning, writings of the framers continue to be relevant as evidence of public meaning.(fn8)

Solum succinctly sets forth...