The Hollow Core of Constitutional Theory
Why We Need the Framers

The first major scholarly defense of the centrality of the Framers' intentions in constitutional interpretation to appear in years.

Donald L. Drakeman (Author)

9781108485289, Cambridge University Press

Hardback, published 8 April 2021

225 pages
24 x 16 x 2 cm, 0.5 kg

'Drakeman speaks the unpleasant truth that rarely speaks its name: in-stead of taking their lead from the Constitution, many judges simply begin with their own sense of what the right outcome should be.' Hadley Arkes, Claremont Review of Books

The Hollow Core of Constitutional Theory is the first major defense of the central role of the Framers' intentions in constitutional interpretation to appear in years. This book starts with a reminder that, for virtually all of Western legal history, when judges interpreted legal texts, their goal was to identify the lawmaker's will. However, for the past fifty years, constitutional theory has increasingly shifted its focus away from the Framers. Contemporary constitutional theorists, who often disagree with each other about virtually everything else, have come to share the view that the Framers' understandings are unknowable and irrelevant. This book shows why constitutional interpretation needs to return to its historical core inquiry, which is a search for the Framers' intentions. Doing so is practically feasible, theoretically defensible, and equally important not only for discovering the original meaning, but also for deciding how to apply the Constitution today.

1. The Framers and Contemporary Constitutional Theory
2. The Framers' Intentions: Who, What, and Where
3. Original Methods and the Limits of Interpretation
4. Original Methods Updating
5. The Semantic Summing Problem
6. Is Corpus Linguistics Better than Flipping a Coin?
7. The Framers' Intentions Can Solve the Semantic Summing Problem
8. Interpretation and Sociological Legitimacy
9. Noninterpretive Decisions
10. Conclusion.

Subject Areas: Constitutional & administrative law [LND], Jurisprudence & philosophy of law [LAB], Constitution: government & the state [JPHC], History of the Americas [HBJK]