The indeterminacy of historial evidence

Article Abstract:

Review of the indeterminate historical evidence implicit in all the constitutional questions relevant to Rosenberger v. Rector of the University of Virginia suggests that originalist reliance on historical evidence nonetheless yields indeterminate results. Historians are willing to acknowledge the indeterminacy of history. Originalist focus on history to divine the intent of the Framers of the Constitution does not resolve the challenges judges face in choosing between divergent interpretations of evidence of original intent.

Church and state

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Normative indeterminacy and the problem of judicial role

Article Abstract:

A judge's originalist committment to constitutional text does not resolve problems of normative indeterminacy in applying that text in a particular context. The text being interpreted may be determinate because reading the text can yield only one conclusion as to the norm or directive that the text represents. This determinacy does not resolve indeterminacy about how the meaning of the text may be used to resolve the controversy that is at issue.

Judicial process

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