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The Nature of Legal InterpretationWhat Jurists Can Learn about Legal Interpretation from Linguistics and Philosophy$
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Brian G. Slocum

Print publication date: 2017

Print ISBN-13: 9780226445021

Published to Chicago Scholarship Online: January 2018

DOI: 10.7208/chicago/9780226445168.001.0001

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Deferentialism, Living Originalism, and the Constitution

Deferentialism, Living Originalism, and the Constitution

Chapter:
(p.218) Chapter Nine Deferentialism, Living Originalism, and the Constitution
Source:
The Nature of Legal Interpretation
Author(s):

Scott Soames

Publisher:
University of Chicago Press
DOI:10.7208/chicago/9780226445168.003.0009

In this chapter, the author compares two recent versions of originalism – his own, which he calls “Deferentialism” and Jack Balkin’s Living Originalism. After beginning with a brief summary of the leading theoretical ideas of the former, the author contrasts those ideas with the conceptual apparatus provided by the latter. The final two sections of the paper illustrate the significance of conceptual differences between the two approaches to several constitutional test cases. So, although Deferentialism and Living Originalism arise from different conceptions of constitutional interpretation and employ different analytic tools, they can be used to reach similar results in some important cases. Nevertheless, the author remains skeptical about how far this convergence can be pushed. Whereas Balkin sees and celebrates the delegation of judicial authority to alter the basic tenets of our constitutional system, the author seeks to minimize that delegation by restricting needed alternations to those that are maximally deferential to original asserted content and rationale. If determinate constitutional rules are sacrosanct, then the rationales for, and determinate parts of, the asserted contents of all constitutional provisions are similarly sacrosanct. That, in a nutshell, is Deferentialism. It is also, I fear, what Living Originalism denies.

Keywords:   Deferentialism, originalism, Living Originalism, constitutional interpretation, legal interpretation, law and language, semantics, pragmatics, Jack Balkin

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