Academic

Download of the Week

By Lawrence Solum

The Download of the Week is The Domestic Violence Clause in ?New Originalist? Theory by Mark S. Stein. Here is the abstract:

In this brief essay, I address the way in which ?new originalists? Jack Balkin and Lawrence Solum use the Domestic Violence Clause in Article IV, Section 4 of the Constitution to support their theories. Balkin uses the Domestic Violence Clause to provide an example of an impermissible departure from original meaning: surely, he claims, it would be wrong to interpret the constitutional term ?domestic violence? as referring to spousal abuse. Solum uses the same example to support his thesis that the semantic meaning of the Constitution is fixed at the time of origin.

In fact, the constitutional term ?domestic violence? could evolve so that an application of the Domestic Violence Clause to spousal abuse no longer seems absurd. Reflection on this possibility yields some insights about originalism and original expected applications.

And from the paper:

But what if Balkin is not right about the original meaning of ?domestic violence?? Some readers will by now have begun to consider a move often made by ?new originalists? such as Balkin and Solum: drawing a line between original meaning and original expected applications. Maybe the original meaning of the constitutional term ?domestic violence? was not, as suggested by Balkin, ?riots or insurrections;?14 maybe those were merely expected applications of the term. Maybe the original meaning of the constitutional term ?domestic violence? was ?violence internal to a state,? so that spousal abuse was, from the very beginning, embraced within the semantic meaning of the Domestic Violence Clause. Spousal abuse was not initially an expected application of the clause, but a constitutional provision can be given a legal meaning different from its original expected application, without doing violence to the hard core of original semantic meaning.

Highly recommended--a wonderful and illuminating essay.  I posted some comments on this here (or just scroll down).

Full post as published by Legal Theory Blog on May 30, 2009 (boomark / email).