Academic

Mootz on American Hermeneutics

By Lawrence Solum

Francis Joseph Mootz III (William S. Boyd School of Law, UNLV) has posted Ugly American Hermeneutics (Nevada Law Review, Vol. 10, No. 3, 2010) on SSRN. Here is the abstract:

This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the "ugly American" hermeneutics exemplified in Justice Scalia's opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia's hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud.

And from the text:

We might forgive Justice Scalia for his ugly hermeneutics?writing, as he was, under time pressure in response to a specific case and with the need to hold his one-vote majority?but we do, and should, expect more from academic commentators. Solum seeks to defend the validity of the Court?s turn to ?what has been called ?original public meaning originalism??the view that the original meaning of a constitutional provision is the conventional semantic meaning that the words and phrases had at the time the provision was framed and ratified.?34 Solum?s phrasing is careful and precise: new originalism defines the ?original meaning? of a text, which is not to say that it necessarily defines the controlling constitutional rule. Solum sep- arates the argument about the meaning of the text from the question of what role that meaning ought to play in constitutional adjudication, acknowledging that precedent, historical practice, and other prudential considerations may well factor into adjudication after the meaning of the text has been determined.35 In other words, the original meaning of a text is a fact in the world that does not, without more, resolve the normative question of how the Court ought to decide constitutional cases.36

Interesting and recommended! Mootz's deeply informed views about the hermeneutic tradition are most definitely not "ugly."

Full post as published by Legal Theory Blog on November 08, 2010 (boomark / email).