Friday, October 19, 2012
The labels of constitutional interpretative practice often attached to Justices such as "legal realist" or "originalist" are both useful and problematical. In her essay, John Paul Stevens, Originalist, 106 Northwestern University Law Review 743 (2012), available on ssrn, Professor Diane Marie Amann (pictured), makes an argument that Justice Stevens could just as well be called an originalist as his more usual label of pragmatist.
Amann's essay argues that scholars need to recognize that Stevens "has done battle upon originalism’s own field of combat." She highlights Stevens opinions in the "gun rights" cases of District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), the latter of which was rendered the day before Stevens retired after almost thirty-five years as a Justice.
Importantly, she also situates Stevens career within the history of the Court, especially Justices appointed by FDR such as Justice Rutledge, for whom Stevens clerked in 1947.
For anyone teaching, writing, or studying theories of constitutional interpretation, Amman's essay is a must-read.