Tuesday, December 23, 2014

Gerber on Liberal Originalism

Scott D. Gerber, Ohio Northern University Pettit College of Law, has posted Liberal Originalism: The Declaration of Independence and Constitutional Interpretation, which appears in the Cleveland State Law Review 63 (2014).  Here is the abstract:
This article is part of a law review symposium about "History and the Meaning of the Constitution." In the article I explain a theory of constitutional interpretation I named "liberal originalism" while I was writing my Ph.D. dissertation (later, my first book). Next, I assess the criticisms of liberal originalism, Justice Clarence Thomas's use of liberal originalism, and the reaction to Justice Thomas's liberal originalism. I conclude the article with a brief discussion of the future of liberal originalism.


Shag from Brookline said...

I have 6 more pages to read but should caution readers that Gerber's concept of "Liberal Originalism" (including as applied to Justice Thomas) is "liberal" in the Lockean sense and not in the au courant liberal sense (perhaps a la Jack Balkin). Gerber discloses this early in his paper but some readers may focus on the current day meaning of "liberal" in their reading of his paper despite Gerber's definition.

Shag from Brookline said...

I did not have Gerber's paper at hand when I made my earlier comment. Here's what Gerber says (page 4):

"Briefly put, I employ a conservative methodology, but arrive at liberal results, as 'liberal' is understood in the classic sense of seventeenth and eighteenth-century Lockean political philosophy."

Query: does Gerber's liberal originalism require readers to fully understand this philosophy as of when it was developed by Locke or as it was later understood by Jefferson in his work on the Declaration of Independence (sort of an issue of originalism within originalism)?

Earlier in his paper (page 2), here is the lead portion of Gerber's footnote 9: "I coined the phrase [liberal originalism] two decades before it became associate with the work of Jack Balkin. Moreover, my approach to constitutional theory is much different than that of Balkin: my liberal originalism is libertarian; Balkin's theory is egalitarian."

So Gerber is an "I" and Balkin is a "WE"? Gerber's liberal originalism is illiberal in the modern sense and Balkin's is illiberal in the Lockean sense? This is a clash of theories (among the many clashes on originalism). Query: How do physicists handle such clashes of theories? See how they work or don't?