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11 - Simple-Minded Originalism? Simply Wrong!

from Part II - Problems in Constitutional Law

Published online by Cambridge University Press:  02 November 2018

Heidi M. Hurd
Affiliation:
University of Illinois
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Summary

In "Simple-Minded Originalism? Simply Wrong!" Lawrence Solum identifies two propositions that constitute the core of Larry Alexander's position on originalism. The first proposition is that meaning is essentially intentional in nature and therefore the meaning of a text is necessarily the author's intended meaning. The second proposition is that the legitimacy of a constitutional text derives from the legitimacy of its author, and therefore any meaning of the constitutional text other than the meaning intended by framers is illegitimate. Solum argues that the first proposition is mistaken: Although meaning must involve intention at some stage, texts have plain meaning that only indirectly depends on individual intentions. Solum argues that the second proposition leads to the consequence that almost all legal texts are illegitimate, because the drafters of such texts are not individually authorized to propose or ratify them. Solum then considers the possibility that this difficulty can be overcome through second-order communicative intentions and shows that this solution undermines both of Alexander's propositions.
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Chapter
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Moral Puzzles and Legal Perplexities
Essays on the Influence of Larry Alexander
, pp. 189 - 205
Publisher: Cambridge University Press
Print publication year: 2018

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