Lawrence Solum
@lsolum
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University of Virginia Law. Constitutional theory. Originalism. Philosophy of language and interpretation. Virtue jurisprudence. AI and law. Legal theory blog.
Charlottesville, Virginia, USA
Joined November 2008
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John Rawls at 100, "A Theory of Justice" at 50: A remembrance and tribute on Legal Theory Blog!
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Fred Schauer Has Passed, : It is with a heavy heart that I report that Fred Schauer passed yesterday, Sunday, the first of September, 2024. I have known Fred for almost forty years. At the very beginning of my academic career, Fred provided comments on my
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Shocking. I disagree with Vermuele about many things but the anti-intellectualism and prejudice in the post should be beyond the pale.
It’s incredibly disappointing that so many law professors on here still cite and celebrate Adrian Vermeule, a 2020 election denier and vicious homophobe who openly despises LGBTQ people. Must be nice that he doesn’t want to erase your family, but we don’t all have that privilege.
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Originalism described by scholars who have not read the literature.
Profs. Justin Driver and Eric A. Posner on what originalism is and why Trump wants an originalist on the Supreme Court
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John Rawls at 100, "A Theory of Justice" at 50
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1/ Some thoughts on an academic career after tenure. Recently,
@CBHessick
asked about post-tenure life for law professors. Here are some thoughts.
@DBRodriguez5
@OrinKerr
@samuelmoyn
@NeilScottSiegel
@CassSunstein
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In retrospect, the inevitable result of the politicization of constitutional law by living constitutionalists.
Sad day for the Senate. But sadder what this means for constitutional law going forward.
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1/4 Alito's opinion is straight from Scalia's playbook; it is living constitutionalism in its constitutional pluralist flavor from top to bottom. The Glucksberg approach assumes substantive due process but attempts to cabin it on the basis of historical practice.
Whatever it is, the draft opinion is not "originalist." It relies on & expands long festering "deeply established" precedent, but fails to grapple w/ originalist scholarship supporting substantive due process, such as by
@RyanWilliams314
&
@evanbernick
.
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I just posted "Original Public Meaning" to SSRN. This new paper explicates the concept of original public meaning in a way that I hope adds rigor, precision, and theoretical depth to scholarly discussions.
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An "In Memoriam" for Fred Schauer has been posted on the UVA Law Website.
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In my view, the ongoing theoretical discussions among and between the Justices are important, illuminating and productive. We have learned much in the last few weeks about the theoretical views of the Justices, especially Barrett, Gorsuch, and Kavanaugh. Bravo.
Kavanaugh also has a solo concurrence (guys, there's really no obligation you make your special views known in every case). No one joined this, so it's just musings of Kavanaugh.
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Teen Vogue on originalism!
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When I first studied law, everyone read H.L.A. Hart's "The Concept of Law."
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1/10 Almond Alliance of California v. Fish & Game Commission, the "bees are fish" case. The majority in this case used a technique that is frequently employed by nontextualists & nonoriginalists. Call this technique "semantic availability."
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I predict that if the Court reaches the merits "the whole Number of persons" in the 14th amendment will be given its original public meaning, which does not exclude immigrants of any kind, documented or not. My first tweet-diction.
BREAKING: Supreme court will review President Trump’s attempt to exclude undocumented immigrants when calculating how congressional seats are apportioned among the states.
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1/ Here is an example of originalism that does not lead to a "conservative" result. In the recent emoluments clause litigation, Trump's lawyers argued for a narrow definition of "emolument."
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The paper of the year to date:
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Professor DeGirolami was my student at Boston University. He was an amazing student and he is a stupendous scholar. Catholic is very fortunate to have made such an important hire.
I'm delighted to announce that I am joining
@CathULaw
, as the inaugural St. John Henry Newman Professor of Law. I will miss my colleagues and students
@StJohnsLaw
, where I've been blessed with a wonderful life for 14 years. I am excited for what will come.
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Try searching the opinions in Trump for "original meaning" or "constitutional text." From Roberts, "True, there is no “Presidential immunity clause” in . . .
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Downloads of the Year from 2020
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1/20 What are the fundamental options for constitutional practice? In the context of constitutionalism in the United States, there are three: (1) judicial supremacy, (2) legislative supremacy, and constitutional supremacy. There are variations and hybrid options too.
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My pleasure. And everyone (but especially early-career scholars), do not hesitate to send me links to your downloadable papers. I only monitor SSRN but links to other repositories are welcome.
Another paper featured on the Legal Theory blog! Thanks
@lsolum
for providing an incentive to early-careers to continue writing.
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Another call for court packing. No one should think that the downward spiral of politicization would stop there. The bottom of a downward spiral is chilling. The rule of law can be destroyed.
Pack the courts! Pass a new voting rights act! Statehood for D.C. and Puerto Rico! 7 Californias! Revamp the electoral system! It's Time to Fight Dirty offers a blueprint for how the left can gain and maintain power by leveling the playing field. Preorder:
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From Brett's dissent in Second Amendment case (D.C. v. Heller, on remand): . . . post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text. /3
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Someone finally noticed!!!
The shortest pangram in legal scholarship (sentence with all the letters of the alphabet) appears to be from
@lsolum
:
"By itself, distinctive knowledge might justify freedom of speech for the excluded, but not equal citizenship."
Fn 99 in:
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From BK dissent in Free Enterprise Fund v. PCAOB:
As the Supreme Court has indicated, it is always important in a case of this sort to begin with the constitutional text and the original understanding, which are essential to proper interpretation of our enduring Constitution./1
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1/5 Just posted on SSRN: "Outcome Reasons and Process Reasons in Normative Constitutional Theory." This paper is about the current state of normative constitutional theory in the United States.
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1/3 My work in progress, "Pragmatics and Textualism," provides an introduction to basic concepts in linguistcs and the philosophy of language. Here is a link: .
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The discussion of “Originalism and the Constitution of Argentina” at the Supreme Court of Argentina was deep and illuminating.
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Op-Ed: Judge Barrett is an originalist. Should we be afraid?
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Richard Fallon receives the Thomas Cooley Book Prize from the Georgetown Center for the Constitution, presented by
@RandyEBarnett
.
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This interview with Keith Whittington is the best thing I've read on Judge Barrett's judicial philosophy:
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Posts on X are not the way to resolve the intense and sharp debates about executive power. I hope that the temperature lowers, and the debate continues in fora that permit fuller explanations. Read Baude.
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Download of the Week: "Making Sense of Evil Law" by Lukina
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1/13 What is the meaning of the word "meaning" when used by originalists, e.g. in the phrase "original public meaning"? For a concise discussion of these issues, see "Original Public Meaning," .
@lsolum
I think both, though I'm not sure the precise distinction you are drawing between those terms.
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1/8 Hot off the keyboard: "Pragmatics and Textualism," , a deep dive into textualist theory. Expressed as a slogan, the thesis is: good textualism requires pragmatics. The word "pragmatics" refers to the role of context in the production of meaning.
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Legal Theory Bookworm: "The Cambridge Companion to the Philosophy of Law," edited by Tasioulas
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10/ Focus on the intrinsic rewards. A scholarly life is lonely, and the payoff can be decades away. If you focus on the extrinsic rewards, citation counts, placements, workshop invitations, downloads, you will be disappointed. Focus on the satisfaction from doing good work.
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1/10 I have written a series of papers about the law and artificial intelligence. All three focus on thought experiments. The first of these papers was published in 1992. "Legal Personhood for Artificial Intelligences." .
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Brand new: Solum & Sunstein, Chevron as Construction, applying the interpretation-construction distinction to the Chevron doctrine:
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The passing of one of the greats: Judith Jarvis Thomson (1929-2020)
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My paper for a recent symposium on Adrian Vermeule's "Common Good Constitutionalism," is now available on SSRN: . The paper is entitled, "Flourishing, Virtue, and the Common Good."
@casssunsten
@Vermeullarmine
@Caseyco231
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Sunstein & Vermeule on the Christmas Eve Conspiracy
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Solum on Pragmatics and Textualism,
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Teaching Karl Marx about Third World Approaches to International Law
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Legal Theory Lexicon: Hohfeld
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Of course, theorists are entitled to stipulate definitions of textualism, but I believe that the mainstream of textualist theorizing is anti-literalism. Here is an excerpt from an article in progress entitled "Pragmatics and Textualism":
Pragmatics and textualism. What is the
It bears repeating:
Textualism is a method of statutory interpretation, not a (real or practiced) method of constitutional interpretation.
Textualism rejects legislative history and contextual purposes.
Originalism relies on drafting history, ratification debates, and context.
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This is a marvelous book, deeply personal, sophisticated, and a joy to read. Sunstein provides a whirlwind tour of contemporary constitutional theory. If you want to know about the great debate between originalism and living constitutionalism, this is the book for you!
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Wishing all my twitterverse friends a joyous holiday season. Watch legal theory blog for a special set of papers.
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12/ Have fun. Do the projects that give you joy! Find the ways to make your classes a blast instead of a chore. Take up a hobby that takes you outside your head. Paint, dance, do photography, camp, hike, go to museums, plays, movies. Be present for your family and friends!
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1/6 This is the wrong framing for disagreement in Fischer. Textualism isn’t literalism. Textualists instead the context must be considered to determine the meaning (communicative content) of the text.
Whatever else one thinks of CJ Roberts’ opinion in Fischer, it seems to favor a purposivist over a textually literalist reading of SOX. So maybe it is just a little odd that Neil “Bostock” Gorsuch joined the majority w/o any further explanation?
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Waldron on Judicial Review,
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Legal Theory Lexicon: Living Constitutionalism
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Waldron on Principles
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Legal Theory Bookworm Favorites from 2020
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Gorsuch, potentially more faithful to the original meaning of the constitutional text and the plain meaning of statutory texts . . .
Gorsuch, potentially more conservative than Scalia, will be on
#SCOTUS
in days, or even hours
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11/ Protect your time. It is very tempting to accept every invitation to every conference and symposium. Invitations are great, but if you end up working on someone else's agenda, you will regret it in the long run. Ask yourself, "Will accepting this advance my core agenda?"
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Tushnet on "Against Constitutionalism" by Loughlin & "he Law as a Conversation Among Equals" by Gargarella
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Dyzenhaus on the Hart-Kelsen Debate & International Law
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"Formalism Is Back," lecture today at the University of Virginia Law School, at 11:30am
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Legal Theory Bookworm: "Philosophical Foundations of Precedent," edited by Endicott, Kristjánsson, & Lewis
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Sunstein on Algorithms & Biases
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The final version (with pagination) of Outcome Reasons and Process Reasons in Normative Constitutional Theory is now available on SSRN:
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Fred's scholarly accomplishments were vast. His did important work in legal theory, evidence law, constitutional theory including freedom of speech, and on many other topics. I was especially influence by two of his many books, Playing By the Rules: A Philosophical Examination of
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Carpentier on Legal Facts,
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1/3 The chances of Loving being reversed are very close to zero. The chances that Obergefell would be reversed are very tiny. Numbers are silly, but one in a million would be my guess.
There is zero chance that Loving is at risk. Same for Obergefell.
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UC Davis is so lucky to land the amazing
@maryrziegler
Sad to be leaving my colleagues and especially students at FSU, a place that saw something in me way back in 2013, when I had yet to publish a single book. Thank you for everything. I am delighted to start this new chapter with amazing colleagues at Davis!
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Schauer on Fuller & the Rule of Law
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1/10 Thread on the Originalism, the Adversary System, and the Role of Appellate Courts. Judge Alito's draft opinion in Dobbs is not an originalist opinion. Two of the many reasons are: (1) the adversary system, and (2) the role of appellate courts.
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Caminos on Legal Change and Originalism
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One of the greats, Hans Linde, has passed. The New York Times article is good, but it fails to mention the "Linde Doctrine," that imposed a duty on state courts to address and resolve state constitutional questions before reaching federal issues.
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Roznai on the Role of the People in Constitutional Amendment
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Download of the Week: "Marx and Critical Constitutional Theory" by Sultany
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Half the fun of retweeting is retweeting things that are stupid.
Half of the fun of being retweeted is the relief that you didn't tweet something stupid.
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No one who had read about contemporary originalism could make this mistake. The 18th century conventional semantic meaning of “arms” extends to modern weapons. This short essay clears up the misunderstanding:
The claim that some SCOTUS judges rely on “originalism” is ridiculous. Do they believe only in the right to bear muskets and nothing more? Do they believe the Fourth Amendment protects physical searches but that searches of our smart phones are unlimited? Of course they don’t.
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10/11 Indeed, critics of originalism should be troubled that students who are attracted to living constitutionalism are rarely informed about the position they oppose.
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1/7 The Georgetown Center for the Constitution
@GUConstitution
has a summer seminar on constitutional originalism. Recently, Professor Murray
@ProfMMurray
has raised a thoughtful question about the need for such an event.
.
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Legal Theory Bookworm: "The Making of Constitutional Democracy" by Sandro
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10/10 The real problem with the opinion is that uses faux textualism that ignores context as a cover for reasoning that involves a judicially constructed objective purpose and judicial manipulation of levels of generality to devise a counterfactual legislative intention. END
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A new look at John Rawls, nearly 50 years later – Harvard Gazette
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Joseph Raz (University of Oxford - Faculty of Law) has posted On Dancy’s Account of Practical Reasoning on...
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Living constitutionalism has nine major variations, including: 1 constutional pluralism (Bobbitt), 2 common law constitutionalism (Strauss), 3 constructive interpretation (Dworkin) 4 Thayerianim (Ely) 5 popular constitutionalism (Kramer) & others.
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A giant of analytic jurisprudence: In Memoriam: Joseph Raz (1939-2022)
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My thanks to everyone at the Universidad Nacional de Cuyo for a stimulating conversation on originalism and the Constitution of Argentina!
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At Balkinization, I have a guest post entitled, "Progressives Need to Support Justice Ketanji Brown Jackson,"
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“Semantic Originalism” is an unfortunate label, both in the use to which Dworkin put it and in the title to an old working paper of mine. As I wrote in 2008 and realize more fully now, context is crucial. Too late for a do over, but communicative content, not semantics is key!
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Mashaw on Models of Administrative Justice
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Every originalist of whom I know believes that the Article V amendment process is consistent with originalism. The argument that originalism is inconsistent with originalism is a straw man.
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