It is often said that the Constitution does not interpret itself, that we are in need of a theory of interpretation for constitutions. This need has led to a flourishing literature on constitutional interpretation. Statutes, also, stand in need of a theory of interpretation, and that obvious need has led to a robust literature on that subject. What is said too infrequently is that Supreme Court rulings do not interpret themselves, that we are in need of a theory of interpretation for rulings. In this essay, I assess the question of what is an appropriate doctrine of ruling interpretation by applying the arguments of the living constitutionalists to Supreme Court rulings. Contemporary proponents of a progressive doctrine of interpretation for constitutions—variously called the ‘living tree,’ ‘living force,’ or ‘living constitution’ doctrines of interpretation—appear to embrace two theses. The first thesis, which we can call the ‘progressive thesis,’ is the view that the Supreme Court ought to ensure that our highest laws are in compliance with contemporary values. The second thesis is the ‘doctrine of judicial supremacy’ which maintains that all lower judicial and non-judicial actors are to accept and adhere to the rulings of the Supreme Court.
Originalism All the Way Down. Or: The Explosion of Progressivism
Originalism All the Way Down. Or: The Explosion of Progressivism
Recent Publications
- “Equal Opportunity, Not Reparations” in the Handbook of Equality of Opportunity (2024)
- “A Bayesian Solution to Hallsson’s Puzzle”
- Markets without Limits: Moral Virtues and Commercial Interests, 2nd Edition
- “Optimizing political influence: a jury theorem with dynamic competence and dependence”
- Why not anarchism?
Recent News
- Advocacy group concerned pay-for-plasma clinics expanding to Ontario will hurt voluntary donations
- Jason Brennan and Hélène Landemore, Debating Democracy (University of Zurich’s UBS Center, 2024)
- Jason Brennan “Everything Wrong with Democracy” on the Alex O’Connor Podcast (January 28, 2024)
- On the affirmative action ruling, the Supreme Court got it half right
- Is the effective altruism movement in trouble?