Monday, May 25, 2009

Friedman on Reconstruction: Some Problems for Originalists (and for Everyone Else, Too)

Barry Friedman, New York University School of Law, has posted a new article, Reconstruction: Some Problems for Originalists (and for Everyone Else, Too). It appears in the Journal of Constitutional Law (2009). Hat tip to Larry Solum, who comments on Friedman here. Here's the abstract:
Reconstruction, America's Second Founding, plays a remarkably small role in constitutional theory. This paper, prepared as part of a symposium aimed at addressing that neglect, discusses the serious interpretive problems posed by an attempt to work Reconstruction - and its aftermath - into the constitutional canon. These problems range from the paucity of extant materials to help understand the intentions of the ratifiers of the Fourteenth Amendment, to the lack of any place in constitutional theory for dealing with constitutional events amendments the country ratifies then effectively rejects. Problems such as these pose an almost insurmountable difficulty for originalists - but they don’t make life easy for other interpretive methodologies either. This paper bears upon the history of the Reconstruction Amendments, as well as interpretive theory.

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