Constitutional Theory
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By Lawrence B. Solum Introduction This week the Legal Theory Lexicon entry focuses on “ambiguity” and “vagueness”–two important concepts for the theory of interpretation. Some legal texts are ambiguous–they contain words or phrases that can have two or more distinct meanings. And some legal texts are vague–they use concepts that have indefinite application to particular cases. And…
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By Lawrence B. Solum Introduction The counter-majoritarian difficulty (sometimes dilemma) may be the best known problem in constitutional theory. The phrase is attributed to Alexander Bickel—a Yale Law School Professor—who is said to have introduced it in his famous book The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Whatever Bickel actually…
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By Lawrence B. Solum Introduction “Legitimacy.” It’s a word much bandied about by students of the law. “Bush v. Gore was an illegitimate decision.” “The Supreme Court’s implied fundamental rights jurisprudence lacks legitimacy.” “The invasion of Iraq does not have a legitimate basis in international law.” We’ve all heard words like these uttered countless times,…
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By Lawrence B. Solum Introduction This entry in the Legal Theory Lexicon is a bit unusual. Rather than explicating concepts that are important to legal theory, the point of this post is to debunk two concepts that sometimes seem to have very little content as used in popular discourse. A case can be made for…
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By Lawrence B. Solum Introduction One of the most important topics in legal theory is “legal interpretation,” which deals with the derivation of meaning from legal texts. Of course, legal interpretation is a very large topic, with several different dimensions and approaches. This post will focus on “textualism,” and provide some introductory ideas about interpretive…
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By Lawrence B. Solum Introduction There are many different theories of constitutional interpretation, but the most controversial and also perhaps the most influential is “originalism.” Originalism is actually a family of constitutional theories, but two ideas are common to almost all versions of originalism. The first idea is that the meaning of the constitutional text…