The Challenge of Originalism

The Challenge of Originalism
Author: Grant Huscroft
Publisher: Cambridge University Press
Total Pages:
Release: 2011-09-12
Genre: Law
ISBN: 1139505130

Originalism is a force to be reckoned with in constitutional interpretation. At one time a monolithic theory of constitutional interpretation, contemporary originalism has developed into a sophisticated family of theories about how to interpret and reason with a constitution. Contemporary originalists harness the resources of linguistic, moral, and political philosophy to propose methodologies for the interpretation of constitutional texts and provide reasons for fidelity to those texts. The essays in this volume, which includes contributions from the flag bearers of several competing schools of constitutional interpretation, provides an introduction to the development of originalist thought, showcases the great range of contemporary originalist constitutional scholarship, and situates competing schools of thought in dialogue with each other. They also make new contributions to the methodological and normative disputes between originalists and non-originalists, and among originalists themselves.

The Challenge of Originalism

The Challenge of Originalism
Author: Associate Professor Faculty of Law Grant Huscroft
Publisher:
Total Pages: 318
Release: 2014-05-14
Genre: LAW
ISBN: 9781139128773

Originalism is a force to be reckoned with in constitutional interpretation. At one time a monolithic theory of constitutional interpretation, contemporary originalism has developed into a sophisticated family of theories about how to interpret and reason with a constitution. Contemporary originalists harness the resources of linguistic, moral, and political philosophy to propose methodologies for the interpretation of constitutional texts and provide reasons for fidelity to those texts. The essays in this volume, which includes contributions from the flag bearers of several competing schools of constitutional interpretation, provides an introduction to the development of originalist thought, showcases the great range of contemporary originalist constitutional scholarship, and situates competing schools of thought in dialogue with each other. They also make new contributions to the methodological and normative disputes between originalists and non-originalists, and among originalists themselves.

Constitutional Originalism

Constitutional Originalism
Author: Robert W. Bennett
Publisher: Cornell University Press
Total Pages: 223
Release: 2011-06-06
Genre: Law
ISBN: 0801461111

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.

The Hollow Core of Constitutional Theory

The Hollow Core of Constitutional Theory
Author: Donald L. Drakeman
Publisher: Cambridge University Press
Total Pages: 247
Release: 2021-04-08
Genre: History
ISBN: 1108485286

The first major scholarly defense of the centrality of the Framers' intentions in constitutional interpretation to appear in years.

Originalism and the 'Challenge of Change'

Originalism and the 'Challenge of Change'
Author: Lee J. Strang
Publisher:
Total Pages: 71
Release: 2009
Genre:
ISBN:

One of the most persistent criticisms of originalism - and also one of the most powerful - is that originalism is not a viable interpretative methodology because of the tremendous change that has occurred since the Constitution's original meaning was created. The Constitution's original meaning arose in contexts so dramatically different from our own, the criticism goes, that a Constitution whose meaning is limited by those contexts would be unworkable in today's world. This form of criticism of originalism is pervasive. Members of the Supreme Court, many in the legal academy and, indeed, even scholars sympathetic to originalism, find the challenge of change compelling.Originalism's proponents have not answered the challenge of change. Instead, they have only noted the challenge in passing and infrequently offered terse, often tentative responses. Justice Scalia, the most prominent judicial proponent of originalism, has even conceded the force of the challenge of change. This Article, by contrast, breaks new ground by providing the first systematic argument that originalism can meet the challenge of changed social conditions.This Article has four parts. First, it explains what originalism is. Second, it reviews the challenge of change. Third, it describes the six interpretative tools that enable originalism to surmount the challenge. Lastly, this Article shows that, despite its ability to meet the challenge of changing social circumstances, originalism retains the virtue of sufficient inflexibility to maintain the quot;critical bitequot; necessary to be a principled interpretative methodology. One of the tools that originalists have used to ascertain the Constitution's original meaning, but which they have failed to articulate, is what I label abduced-principle originalism. I will describe abduced-principle originalism, explain how its use is pervasive, and why it is central to originalism's ability to meet the challenge of change.

Living Originalism

Living Originalism
Author: Jack M. Balkin
Publisher: Harvard University Press
Total Pages: 481
Release: 2011-11-29
Genre: Law
ISBN: 0674063031

Originalism and living constitutionalism, so often understood to be diametrically opposing views of our nation’s founding document, are not in conflict—they are compatible. So argues Jack Balkin, one of the leading constitutional scholars of our time, in this long-awaited book. Step by step, Balkin gracefully outlines a constitutional theory that demonstrates why modern conceptions of civil rights and civil liberties, and the modern state’s protection of national security, health, safety, and the environment, are fully consistent with the Constitution’s original meaning. And he shows how both liberals and conservatives, working through political parties and social movements, play important roles in the ongoing project of constitutional construction. By making firm rules but also deliberately incorporating flexible standards and abstract principles, the Constitution’s authors constructed a framework for politics on which later generations could build. Americans have taken up this task, producing institutions and doctrines that flesh out the Constitution’s text and principles. Balkin’s analysis offers a way past the angry polemics of our era, a deepened understanding of the Constitution that is at once originalist and living constitutionalist, and a vision that allows all Americans to reclaim the Constitution as their own.

Originalism and the Good Constitution

Originalism and the Good Constitution
Author: John O. McGinnis
Publisher: Harvard University Press
Total Pages: 309
Release: 2013-11-01
Genre: Law
ISBN: 067472626X

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.

A Debt Against the Living

A Debt Against the Living
Author: Ilan Wurman
Publisher: Cambridge University Press
Total Pages: 173
Release: 2017-07-31
Genre: Law
ISBN: 1108419801

This book is an introduction to and defense of originalism and the Founding intended for a more general audience. No similar book exists. It is aimed at law students, advanced college students, policymakers, and the politically interested reader seeking a general introduction to originalism and its implications for today.

Originalism as Faith

Originalism as Faith
Author: Eric J. Segall
Publisher: Cambridge University Press
Total Pages: 259
Release: 2018-10-18
Genre: Law
ISBN: 1107188555

Tracing the development of originalism, Eric J. Segall shows how judges often use the theory to reach politically desirable results.

Originalism's Promise

Originalism's Promise
Author: Lee J. Strang
Publisher: Cambridge University Press
Total Pages: 329
Release: 2019-08-08
Genre: History
ISBN: 1108475639

Provides the first natural law justification for an originalist interpretation of the American Constitution.