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2 - The Framers’ Intentions

Who, What, and Where

Published online by Cambridge University Press:  26 January 2021

Donald L. Drakeman
Affiliation:
University of Notre Dame, Indiana
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Summary

Identifying the will of the lawmaker has long been the central interpretive inquiry in American jurisprudence, an approach this nation inherited from a very lengthy set of legal predecessors. A great deal of commentary throughout Western legal history has been devoted to the questions of what constitutes the will of the lawmaker, and where interpreters should find evidence of that will, but there has been impressive agreement on the question of whether interpreters should do so. This chapter will address both what and where, but, first, there is a question that is peculiar to the American constitutional setting: who is the lawmaker? This chapter argues that the primary lawmaker is the Framers, and, only secondarily, the ratifiers. Based on work by Richard Ekins and others, it shows that there actually can be an intention of the constitutional lawmakers that is recoverable by interpreters. It also shows that the records of the constitutional debates and drafting can potentially provide essential information for interpreters seeking to determine what policy choice was made by the adoption of the constitutional language – that is, the ends and means represented by the text.

Type
Chapter
Information
The Hollow Core of Constitutional Theory
Why We Need the Framers
, pp. 26 - 54
Publisher: Cambridge University Press
Print publication year: 2021

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  • The Framers’ Intentions
  • Donald L. Drakeman, University of Notre Dame, Indiana
  • Book: The Hollow Core of Constitutional Theory
  • Online publication: 26 January 2021
  • Chapter DOI: https://doi.org/10.1017/9781108751001.003
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  • The Framers’ Intentions
  • Donald L. Drakeman, University of Notre Dame, Indiana
  • Book: The Hollow Core of Constitutional Theory
  • Online publication: 26 January 2021
  • Chapter DOI: https://doi.org/10.1017/9781108751001.003
Available formats
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Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • The Framers’ Intentions
  • Donald L. Drakeman, University of Notre Dame, Indiana
  • Book: The Hollow Core of Constitutional Theory
  • Online publication: 26 January 2021
  • Chapter DOI: https://doi.org/10.1017/9781108751001.003
Available formats
×