The Original Understanding of Original Intent
TL;DR: Powell as discussed by the authors examined the historical validity of the claim that the framers of the Constitution expected future interpreters to seek the meaning of the document in the framer's intent.
Abstract: When interpreting the Constitution, judges and commentators often invoke the “original intent of the framers” in support of their positions. Many claim that such an interpretive strategy is not only currently desirable, but indeed was the expectation of the Constitution’s drafters and early interpreters. In this Article, Professor Powell examines the historical validity of the claim that the framers of the Constitution expected future interpreters to seek the meaning of the document in the framers’ intent. He first examines the various cultural traditions that influenced legal interpretation at the time of the Constitution’s birth. Turning to the history of the Constitution’s framing, ratification, and early interpretation, Professor Powell argues that although early constitutional discourse did contain references to “original intention” and the “intent of the framers,” the meaning of such terms was markedly different from their current usage. He concludes that modern resort to the “intent of the framers” can gain no support from the assertion that such was the framers’ expectation, for the framers themselves did not believe such an interpretive strategy to be appropriate.
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Journal Article•
TL;DR: Shapiro et al. as mentioned in this paper presented a list of the 100 most cited legal articles of all time, the top twenty most cited articles of the last twenty years, and some additional rankings.
Abstract: This Essay updates two well-known earlier studies (dated 1985 and 1996) by the first coauthor, setting forth lists of the most-cited law review articles. New research tools from the HeinOnline and Web of Science databases now allow lists to be compiled that are more thorough and more accurate than anything previously possible. Tables printed here present the 100 most-cited legal articles of all time, the 100 most-cited articles of the last twenty years, and some additional rankings. Characteristics of the top-ranked publications, authors, and law schools are analyzed as are trends in schools of legal thought. Data from the all-time rankings shed light on contributions to legal scholarship made over a long historical span; the recent-article rankings speak more to the impact of scholarship produced in the current era. The authors discuss alternative tools and metrics for measuring the impact of legal scholarship, running selected articles from the rankings through these tools to serve as points of illustration. The authors then contemplate how these alternative tools and metrics intersect with traditional citation studies and how they might impact legal scholarship in the future.I. Previous Studies and Rationale (Shapiro)This is the third in a series of studies that I have authored enumerating the most-cited legal articles-that is, the articles most often cited within other articles.1 The two previous installments attracted considerable attention in both the legal community and the general media. Jack Balkin and Sanford Levinson wrote, "Fred Shapiro can lay claim to be the founding father of a new and peculiar discipline: 'legal citology.' "2 The Wall Street Journal ran a front-page profile of me based on the citation rankings,3 popularizing Balkin and Levinson's term "citology" to the point where Britain's Guardian newspaper included the term in a glossary of new words of the 1990s.4 Herma Hill Kay, with tongue planted firmly in cheek, hailed my work:Footnotes nowadays are not phony excrescences; they are the raw data used by the hottest new school of legal scholarship, the citation analysts. These bibliotechs have shown once and for all that nobody reads the text of other people's articles anyway. Anybody who is anybody in any field you care to name has already said the same thing in different words a dozen times before. There is nothing new under the sun. The only thing that is important is who cites whom. If you're cited, that means you're identified as a player in the game: a scholar of significance.5I also published a more specific "most-cited" compilation listing the top thirty articles from the Yale Law Journal on the occasion of that law review's centennial.6 Without claiming too much significance for citology, I described citology as more than a mere parlor game and as a potentially useful tool for studying the impact of scholarship:Citation analysis is now extensively used by information scientists and sociologists to study the history and structure of the natural sciences and other disciplines . . . .. . . Authors too have been evaluated through tabulation of citations to their writings. Citation counts have been utilized in assessing scholars' work for purposes of grant awards, tenure, or promotion decisions.Those using citation data for evaluative purposes have justified such use by pointing to research demonstrating a high correlation between the total of citations to a scientist's or scholar's writings and judgments by peers of the " 'productivity,' 'significance,' 'quality,' 'utility,' 'influence,' 'effectiveness,' or 'impact' of scientists and their scholarly products." One investigator has gone so far as to say that "citations and peer ratings appear to be virtually the same measurement."Almost all citation analysts, however, are careful to note that citation counts measure a "quality" which is socially defined, reflecting the utility of the writing in question to other scholars, rather than gauging its intrinsic merit. …
63 citations
TL;DR: This paper examined the relation between prerogative and liberal constitutionalism by comparing the approaches of two Founders with different conceptions of executive power, Jefferson and Hamilton, and found that although they both endorsed a Lockean conception of pre-rogative that makes it possible to secure vital substantive ends that might be imperiled by strict adherence to ordinary legal forms in an emergency, they disagreed over the constitutionality of Prerogative.
Abstract: Scholars, the courts, and the public have been ambivalent about prerogative, the power of presidents to take extraordinary actions without explicit legal authorization in emergencies, because it seems to defy core principles of liberal constitutionalism. This article examines the relation between prerogative and liberal constitutionalism by comparing the approaches of two Founders with different conceptions of executive power, Jefferson and Hamilton. Although they both endorsed a Lockean conception of prerogative that makes it possible to secure vital substantive ends that might be imperiled by strict adherence to ordinary legal forms in an emergency, they disagreed over the constitutionality of prerogative. Whereas Hamilton located the authority for prerogative within the implied powers of the Constitution, Jefferson expected presidents to admit wrongdoing and seek post-hoc approval from the public, a difference with important implications for both democracy and constitutional practice that can be traced back to ambiguities in Locke's theory of prerogative.
46 citations
Journal Article•
35 citations
01 Jan 2012
29 citations
01 Aug 2019
TL;DR: The history of American constitutional interpretation has largely been an originalist one as mentioned in this paper, and the Framers and Ratifiers employed originalism when debating, drafting, and authorizing the Constitution.
Abstract: The history of American constitutional interpretation has largely been an originalist one. At the Founding, the Framers and Ratifiers employed originalism when debating, drafting, and authorizing the Constitution. They did so against a background of originalist conventions of legal interpretation. Throughout the nineteenth century and – though subject to greater criticism and exceptions – up to the New Deal, originalism continued to be the dominant method of constitutional interpretation.
27 citations