Document Type
Article
Publication Date
2016
Abstract
Constitutional rules are norms whose application depends on an interpreter's identification of a set of facts rather than on her exercise of practical judgment. This Article argues that constitutional interpreters in the United States tend to resolve ambiguity over constitutional rules by reference to originalist sources and tend to resolve uncertainty over the scope of constitutional standards by reference to nonoriginalist sources. This positive claim unsettles the frequent assumption that the Constitution's more specifw or structural provisions support straightforward interpretive inferences. Normatively, this Article offers a partial defense of what it calls "rule originalism," grounded in the fact of its positive practice, its relative capacity for restrainingj udges, and, above all, its respect for the constitutional choice of rules versus standards. Finally, this Article argues that this limited justification for rule originalism suggests a liberalization of barriers to government institutional standing in cases involving the meaning of constitutional rules.
Disciplines
Constitutional Law | Law
Recommended Citation
Jamal Greene,
Rule Originalism,
116
Colum. L. Rev.
1639
(2016).
Available at:
https://scholarship.law.columbia.edu/faculty_scholarship/92