In the annual James Madison Lecture, Robert Henry, former Chief Judge of the
United States Court of Appeals for the Tenth Circuit, explores Justice John
Marshall Harlan II’s notable dissent in Poe v. Ullman. President Henry carefully
examines Justice Harlan’s method of constitutional interpretation. Refusing to
adopt a “literalistic” reading of the Constitution and instead looking to the “history
and purposes” of a particular constitutional provision, Justice Harlan’s approach
serves as a source of both flexibility and restraint. Of particular importance is
Justice Harlan’s recognition of the role that “living” traditions play in supplying
meaning to the concept of due process of law. What emerges from this probing
review of Justice Harlan’s Poe dissent is a moderate and thoughtful response to
originalism.
LawReview
