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| Author | : Dennis J. Goldford |
| Publisher | : Cambridge University Press |
| Total Pages | : 320 |
| Release | : 2005-04-25 |
| Genre | : Political Science |
| ISBN | : 9780521845588 |
Download The American Constitution and the Debate over Originalism Book in PDF, ePub and Kindle
Located at the intersection of law, political science, philosophy, and literary theory, this book explores the nature of American constitutional interpretation through a reconsideration of the long-standing debate between the interpretive theories of originalism and nonoriginalism. It traces that debate to a particular set of premises about the nature of language, interpretation, and objectivity, premises that raise the specter of unconstrained, unstructured constitutional interpretation that has haunted contemporary constitutional theory.
| Author | : Robert W. Bennett |
| Publisher | : Cornell University Press |
| Total Pages | : 223 |
| Release | : 2011-06-06 |
| Genre | : Law |
| ISBN | : 0801461111 |
Download Constitutional Originalism Book in PDF, ePub and Kindle
Problems of constitutional interpretation have many faces, but much of the contemporary discussion has focused on what has come to be called "originalism." The core of originalism is the belief that fidelity to the original understanding of the Constitution should constrain contemporary judges. As originalist thinking has evolved, it has become clear that there is a family of originalist theories, some emphasizing the intent of the framers, while others focus on the original public meaning of the constitutional text. This idea has enjoyed a modern resurgence, in good part in reaction to the assumption of more sweeping power by the judiciary, operating in the name of constitutional interpretation. Those arguing for a "living Constitution" that keeps up with a changing world and changing values have resisted originalism. This difference in legal philosophy and jurisprudence has, since the 1970s, spilled over into party politics and the partisan wrangling over court appointments from appellate courts to the Supreme Court. In Constitutional Originalism, Robert W. Bennett and Lawrence B. Solum elucidate the two sides of this debate and mediate between them in order to separate differences that are real from those that are only apparent. In a thorough exploration of the range of contemporary views on originalism, the authors articulate and defend sharply contrasting positions. Solum brings learning from the philosophy of language to his argument in favor of originalism, and Bennett highlights interpretational problems in the dispute-resolution context, describing instances in which a living Constitution is a more feasible and productive position. The book explores those contrasting positions, to be sure, but also uncovers important points of agreement for the interpretational enterprise. This provocative and absorbing book ends with a bibliographic essay that points to landmark works in the field and helps lay readers and students orient themselves within the literature of the debate.
| Author | : Steven G. Calabresi |
| Publisher | : Simon and Schuster |
| Total Pages | : 370 |
| Release | : 2007-08-21 |
| Genre | : Political Science |
| ISBN | : 1596980605 |
Download Originalism Book in PDF, ePub and Kindle
What did the Constitution mean at the time it was adopted? How should we interpret today the words used by the Founding Fathers? In ORIGINALISM: A QUARTER-CENTURY OF DEBATE, these questions are explained and dissected by the very people who continue to shape the legal structure of our country.This is a lively and fascinating discussion of an issue that has occupied the greatest legal minds in America, and one that continues to elicit strong reactions from both those who support and those who oppose the rule of law. Steven G. Calabresi, co-founder of the Federalist Society and professor of law at Northwestern University School of Law, has compiled an impressive collection of speeches, panel discussions, and debates from some of the greatest and most prominent legal experts of the last twenty-five years.
| Author | : Johnathan O'Neill |
| Publisher | : JHU Press |
| Total Pages | : 308 |
| Release | : 2005-07-12 |
| Genre | : History |
| ISBN | : 9780801881114 |
Download Originalism in American Law and Politics Book in PDF, ePub and Kindle
This book explains how the debate over originalism emerged from the interaction of constitutional theory, U.S. Supreme Court decisions, and American political development. Refuting the contention that originalism is a recent concoction of political conservatives like Robert Bork, Johnathan O'Neill asserts that recent appeals to the origin of the Constitution in Supreme Court decisions and commentary, especially by Justices Antonin Scalia and Clarence Thomas, continue an established pattern in American history. Originalism in American Law and Politics is distinguished by its historical approach to the topic. Drawing on constitutional commentary and treatises, Supreme Court and lower federal court opinions, congressional hearings, and scholarly monographs, O'Neill's work will be valuable to historians, academic lawyers, and political scientists.
| Author | : Steven G. Calabresi |
| Publisher | : Regnery Publishing |
| Total Pages | : 370 |
| Release | : 2007-08-21 |
| Genre | : Political Science |
| ISBN | : 1596980508 |
Download Originalism Book in PDF, ePub and Kindle
What did the Constitution mean at the time it was adopted? How should we interpret today the words used by the Founding Fathers? In ORIGINALISM: A QUARTER-CENTURY OF DEBATE, these questions are explained and dissected by the very people who continue to shape the legal structure of our country. Inside you'll find: *A foreword by Justice Antonin Scalia and speeches by former attorney general Edwin Meese III, Justice William Brennan, Judge Robert H. Bork, and President Ronald Reagan *Transcripts from panel discussions and debates engaging some of the brightest legal minds of our time in frank, open discussions about the original meaning of the Constitution of the United States and its impact on the rule of law in our country *A debate on the original meaning of the Commerce, Spending, and Necessary and Proper Clauses *Concluding thoughts by Theodore Olson, forty-second solicitor general of the United States and a fellow at both the American College of Trial Lawyers and the American Academy of Appellate Lawyers. ORIGINALISM: A QUARTER-CENTURY OF DEBATE is a lively and fascinating discussion of an issue that has occupied the greatest legal minds in America, and one that continues to elicit strong reactions from both those who support and those who oppose the rule of law. Steven G. Calabresi, co-founder of the Federalist Society and professor of law at Northwestern University School of Law, has compiled an impressive collection of speeches, panel discussions, and debates from some of the greatest and most prominent legal experts of the last twenty-five years.
| Author | : John O. McGinnis |
| Publisher | : Harvard University Press |
| Total Pages | : 309 |
| Release | : 2013-11-01 |
| Genre | : Law |
| ISBN | : 067472626X |
Download Originalism and the Good Constitution Book in PDF, ePub and Kindle
Originalism holds that the U.S. Constitution should be interpreted according to its meaning at the time it was enacted. In their innovative defense of originalism, John McGinnis and Michael Rappaport maintain that the text of the Constitution should be adhered to by the Supreme Court because it was enacted by supermajorities--both its original enactment under Article VII and subsequent Amendments under Article V. A text approved by supermajorities has special value in a democracy because it has unusually wide support and thus tends to maximize the welfare of the greatest number. The authors recognize and respond to many possible objections. Does originalism perpetuate the dead hand of the past? How can originalism be justified, given the exclusion of African Americans and women from the Constitution and many of its subsequent Amendments? What is originalism's place in interpretation, after two hundred years of non-originalist precedent? A fascinating counterfactual they pose is this: had the Supreme Court not interpreted the Constitution so freely, perhaps the nation would have resorted to the Article V amendment process more often and with greater effect. Their book will be an important contribution to the literature on originalism, now the most prominent theory of constitutional interpretation.
| Author | : Andre LeDuc |
| Publisher | : |
| Total Pages | : 67 |
| Release | : 2016 |
| Genre | : |
| ISBN | : |
Download Beyond Babel Book in PDF, ePub and Kindle
This Article completes a therapeutic treatment of the originalism debate. The long-running debate over constitutional originalism is pathological, more confused than insightful or important. This Article completes the course of therapy by sketching the constitutional discourse and practice we may hope for after the debate over originalism is transcended and left behind. In so doing, it disarms the final defense of the participants in that debate in that they have no alternative. Only by sketching what that alternative is can its existence be proved, and the ideopolises of the protagonists finally be reconstructed. This Article shows the constitutional theory and criticism we may aspire to if we are freed of the bonds of the debate over originalism and its underlying assumptions.First, the Article outlines what a post-debate constitutional decision process would look like if the judicial decision makers no longer felt compelled to articulate their opinions in the vocabulary of that debate. Second, it describes what constitutional scholarship could look like without the constraints of the Weltanschauung shared by the protagonists in the originalism debate. Third, the Article gives currency to the claim that abandoning the debate about originalism can revive the public discourse about our Constitution, what it says, what it does not say, and what it should say. Fourth, and finally, the Article suggest how abandoning the perspective of the debate about constitutional originalism frees even the principal protagonists in that debate to engage with the American Constitution -- and with those who would apply the Constitution very differently -- in a more direct and powerful way. The framework of the originalism debate constrains and distorts the argument and discourse rather than enriches it. At all of these levels, leaving the debate over constitutional originalism behind gives us a revived constitutional discourse and a more robust American Constitution.
| Author | : David A. Strauss |
| Publisher | : Oxford University Press |
| Total Pages | : 171 |
| Release | : 2010-05-19 |
| Genre | : Law |
| ISBN | : 0199703698 |
Download The Living Constitution Book in PDF, ePub and Kindle
Supreme Court Justice Antonin Scalia once remarked that the theory of an evolving, "living" Constitution effectively "rendered the Constitution useless." He wanted a "dead Constitution," he joked, arguing it must be interpreted as the framers originally understood it. In The Living Constitution, leading constitutional scholar David Strauss forcefully argues against the claims of Scalia, Clarence Thomas, Robert Bork, and other "originalists," explaining in clear, jargon-free English how the Constitution can sensibly evolve, without falling into the anything-goes flexibility caricatured by opponents. The living Constitution is not an out-of-touch liberal theory, Strauss further shows, but a mainstream tradition of American jurisprudence--a common-law approach to the Constitution, rooted in the written document but also based on precedent. Each generation has contributed precedents that guide and confine judicial rulings, yet allow us to meet the demands of today, not force us to follow the commands of the long-dead Founders. Strauss explores how judicial decisions adapted the Constitution's text (and contradicted original intent) to produce some of our most profound accomplishments: the end of racial segregation, the expansion of women's rights, and the freedom of speech. By contrast, originalism suffers from fatal flaws: the impossibility of truly divining original intent, the difficulty of adapting eighteenth-century understandings to the modern world, and the pointlessness of chaining ourselves to decisions made centuries ago. David Strauss is one of our leading authorities on Constitutional law--one with practical knowledge as well, having served as Assistant Solicitor General of the United States and argued eighteen cases before the United States Supreme Court. Now he offers a profound new understanding of how the Constitution can remain vital to life in the twenty-first century.
| Author | : Lee J. Strang |
| Publisher | : Cambridge University Press |
| Total Pages | : 329 |
| Release | : 2019-08-08 |
| Genre | : History |
| ISBN | : 1108475639 |
Download Originalism's Promise Book in PDF, ePub and Kindle
Provides the first natural law justification for an originalist interpretation of the American Constitution.
| Author | : Jonathan Gienapp |
| Publisher | : Harvard University Press |
| Total Pages | : 402 |
| Release | : 2018-10-09 |
| Genre | : History |
| ISBN | : 067498952X |
Download The Second Creation Book in PDF, ePub and Kindle
Americans widely believe that the U.S. Constitution was almost wholly created when it was drafted in 1787 and ratified in 1788. Jonathan Gienapp recovers the unknown story of the Constitution’s second creation in the decade after its adoption—a story with explosive implications for current debates over constitutional originalism and interpretation.
