by Timothy Sandefur
February 5, 2018
Legal scholars have argued for generations over the right ways to interpret the Constitution: is it a “living document,” that changes with time, or should it be interpreted as the original authors meant? In her recent book, Judicial Review in an Objective Legal System, philosopher Tara Smith argues for a third way: an objective interpretation that avoids the vagueness associated with the “living constitution” view and the subjectivity that still plagues Originalism. Instead, she argues that written laws have objective meanings—as well as moral rules—that should be faithfully applied.
Last year, I was invited to participate in a conference to review Smith’s book. While I strongly agree with most of it, there are also aspects of her view I found incomplete or possibly contradictory. The latest issue of Reason Papers, published this week, includes my essay on the book, “Hercules and Narragansett among the Originalists,” and you can read it here. Professor Smith responds to my essay here.
Timothy Sandefur is the vice president for litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.