The Download of the Week is The Spirit of the Law: "Controuling the Letter by the Plain Spirit" by Saikrishna Prakash. Here is the abstract:
The Founders were not textualists. Certainly, the letter of the law mattered quite a bit. But, as William Blackstone noted, interpretation also required the consideration of purpose, intent, and reason-what he and others called "spirit." This Article makes several contributions. First, spirit was a familiar tool of legal interpretation, applicable to constitutions, laws, treaties, judicial precedents, and even executive rules. Second, spirit was a potent interpretive factor, for it not only helped resolve textual ambiguities, but people also invoked it to overcome a law's semantic meaning. More precisely, the Founders deployed spirit to generate a meaning that often trumped the letter of the law. Spirit might be used to extend the law beyond its letter-extensive interpretation. And spirit could restrict the meaning suggested by the letter of the law-restrictive interpretation. Third, spirit was not the peculiar province of the courts. Instead, spirit was more democratic, for everyone made free use of it. Early federal legislators, including James Madison, invoked spirit to make sense of the Constitution. Executives, including George Washington, Alexander Hamilton, Thomas Jefferson and many others utilized spirit to make sense of the Constitution, laws, treaties, and executive rules. John Marshall deployed spirit to defeat the letter of the law before he was Chief Justice and continued invoking it while on the bench. This excavation of Founding-era practices has implications for modern debates. To begin with, the Founders eschewed the extreme fixation on text that characterizes modern textualism. One should not use a late twentieth-century theory to make sense of late eighteenth-century documents, particularly the Constitution. Relatedly, given that the Founders frequently used spirit, textualists should reassess the claim that the Constitution mandates modern textualist precepts. Lastly, originalists of all stripes should refine their understanding of originalist methodology, for a proper conception of originalism should perhaps reflect the interpretive practices of the Founders. Public meaning originalists, original methods originalists, and every other species of originalist must come to grips with spirit's central role in early American thought and practice. For too long, we have been in the thrall of a textualism that is at war with the pervasive use of spirit at the Founding.
Highly recommended.
