The Challenge Of Originalism

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The Challenge of Originalism

Grant Huscroft,Bradley W. Miller
The Challenge of Originalism Book PDF

Author : Grant Huscroft,Bradley W. Miller
Publisher : Cambridge University Press
Page : 128 pages
File Size : 48,7 Mb
Release : 2011-09-12
Category : Law
ISBN : 9781139505130

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The Challenge of Originalism by Grant Huscroft,Bradley W. Miller Pdf

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

Associate Professor Faculty of Law Grant Huscroft,Bradley Wayne Miller
The Challenge of Originalism Book PDF

Author : Associate Professor Faculty of Law Grant Huscroft,Bradley Wayne Miller
Publisher : Unknown
Page : 318 pages
File Size : 40,6 Mb
Release : 2014-05-14
Category : LAW
ISBN : 1139128779

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The Challenge of Originalism by Associate Professor Faculty of Law Grant Huscroft,Bradley Wayne Miller Pdf

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

Robert W. Bennett,Lawrence B. Solum
Constitutional Originalism Book PDF

Author : Robert W. Bennett,Lawrence B. Solum
Publisher : Cornell University Press
Page : 223 pages
File Size : 49,6 Mb
Release : 2011-06-06
Category : Law
ISBN : 9780801461118

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Constitutional Originalism by Robert W. Bennett,Lawrence B. Solum Pdf

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.

Living Originalism

Jack M. Balkin
Living Originalism Book PDF

Author : Jack M. Balkin
Publisher : Harvard University Press
Page : 481 pages
File Size : 41,5 Mb
Release : 2011-11-29
Category : Law
ISBN : 9780674063037

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Living Originalism by Jack M. Balkin Pdf

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.

The Justice of Contradictions

Richard L. Hasen
The Justice of Contradictions Book PDF

Author : Richard L. Hasen
Publisher : Yale University Press
Page : 245 pages
File Size : 41,7 Mb
Release : 2018-03-20
Category : Biography & Autobiography
ISBN : 9780300228649

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The Justice of Contradictions by Richard L. Hasen Pdf

An eye-opening look at the influential Supreme Court justice who disrupted American jurisprudence in order to delegitimize opponents and establish a conservative legal order

Originalism as Faith

Eric J. Segall
Originalism as Faith Book PDF

Author : Eric J. Segall
Publisher : Cambridge University Press
Page : 259 pages
File Size : 49,9 Mb
Release : 2018-10-18
Category : Law
ISBN : 9781107188556

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Originalism as Faith by Eric J. Segall Pdf

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

The Hollow Core of Constitutional Theory

Donald L. Drakeman
The Hollow Core of Constitutional Theory Book PDF

Author : Donald L. Drakeman
Publisher : Cambridge University Press
Page : 247 pages
File Size : 50,9 Mb
Release : 2021-04-08
Category : History
ISBN : 9781108485289

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The Hollow Core of Constitutional Theory by Donald L. Drakeman Pdf

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

Expounding the Constitution

Grant Huscroft
Expounding the Constitution Book PDF

Author : Grant Huscroft
Publisher : Cambridge University Press
Page : 332 pages
File Size : 53,9 Mb
Release : 2008-04-21
Category : Law
ISBN : 0521887410

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Expounding the Constitution by Grant Huscroft Pdf

What does it mean to interpret the constitution? Does constitutional interpretation involve moral reasoning, or is legal reasoning something different? What does it mean to say that a limit on a right is justified? How does judicial review fit into a democratic constitutional order? Are attempts to limit its scope incoherent? How should a jurist with misgivings about the legitimacy of judicial review approach the task of judicial review? Is there a principled basis for judicial deference? Do constitutional rights depend on the protection of a written constitution, or is there a common law constitution that is enforceable by the courts? How are constitutional rights and unwritten constitutional principles to be reconciled? In this book, these and other questions are debated by some of the world's leading constitutional theorists and legal philosophers. Their essays are essential reading for anyone concerned with constitutional rights and legal theory.

Originalism's Promise

Lee J. Strang
Originalism s Promise Book PDF

Author : Lee J. Strang
Publisher : Cambridge University Press
Page : 329 pages
File Size : 50,7 Mb
Release : 2019-08-08
Category : History
ISBN : 9781108475631

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Originalism's Promise by Lee J. Strang Pdf

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

A Debt Against the Living

Ilan Wurman
A Debt Against the Living Book PDF

Author : Ilan Wurman
Publisher : Cambridge University Press
Page : 173 pages
File Size : 48,5 Mb
Release : 2017-07-31
Category : Law
ISBN : 9781108419802

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A Debt Against the Living by Ilan Wurman Pdf

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.

Settled Versus Right

Randy J. Kozel
Settled Versus Right Book PDF

Author : Randy J. Kozel
Publisher : Cambridge University Press
Page : 191 pages
File Size : 53,6 Mb
Release : 2017-06-06
Category : Law
ISBN : 9781107127531

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Settled Versus Right by Randy J. Kozel Pdf

This book analyzes the theoretical nuances and practical implications of how judges use precedent.

Proportionality and the Rule of Law

Grant Huscroft,Bradley W. Miller,Grégoire Webber
Proportionality and the Rule of Law Book PDF

Author : Grant Huscroft,Bradley W. Miller,Grégoire Webber
Publisher : Cambridge University Press
Page : 433 pages
File Size : 42,9 Mb
Release : 2014-04-21
Category : Law
ISBN : 9781107064072

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Proportionality and the Rule of Law by Grant Huscroft,Bradley W. Miller,Grégoire Webber Pdf

Leading constitutional theorists debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning.

The American Constitution and the Debate Over Originalism

Dennis J. Goldford
The American Constitution and the Debate Over Originalism Book PDF

Author : Dennis J. Goldford
Publisher : Cambridge University Press
Page : 319 pages
File Size : 47,6 Mb
Release : 2005-04-25
Category : Law
ISBN : 9780521845588

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The American Constitution and the Debate Over Originalism by Dennis J. Goldford Pdf

This is a work of constitutional theory that explores the nature of American constitutional interpretation through a reconsideration of the long-standing debate between the interpretive theories of originalism and nonoriginalism. The book presents the novel argument that a critique of the underlying premises of originalism dissolves not just originalism but nonoriginalism as well, which leads to the recognition that constitutional interpretation is already and always structured. By their fidelity to the Constitution, Americans are a textual people in that they live in and through the terms of a fundamental text. On the basis of this central idea, the book presents a new understanding of constitutional interpretation and an innovative account of the democratic legitimacy and binding capacity of the Constitution.

Common Good Constitutionalism

Adrian Vermeule
Common Good Constitutionalism Book PDF

Author : Adrian Vermeule
Publisher : John Wiley & Sons
Page : 171 pages
File Size : 46,9 Mb
Release : 2022-02-08
Category : Political Science
ISBN : 9781509548880

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Common Good Constitutionalism by Adrian Vermeule Pdf

The way that Americans understand their Constitution and wider legal tradition has been dominated in recent decades by two exhausted approaches: the originalism of conservatives and the “living constitutionalism” of progressives. Is it time to look for an alternative? Adrian Vermeule argues that the alternative has been there, buried in the American legal tradition, all along. He shows that US law was, from the founding, subsumed within the broad framework of the classical legal tradition, which conceives law as “a reasoned ordering to the common good.” In this view, law’s purpose is to promote the goods a flourishing political community requires: justice, peace, prosperity, and morality. He shows how this legacy has been lost, despite still being implicit within American public law, and convincingly argues for its recovery in the form of “common good constitutionalism.” This erudite and brilliantly original book is a vital intervention in America’s most significant contemporary legal debate while also being an enduring account of the true nature of law that will resonate for decades with scholars and students.

Originalism and the Good Constitution

John O. McGinnis,Michael B. Rappaport
Originalism and the Good Constitution Book PDF

Author : John O. McGinnis,Michael B. Rappaport
Publisher : Harvard University Press
Page : 309 pages
File Size : 48,7 Mb
Release : 2013-11-01
Category : Law
ISBN : 9780674726260

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Originalism and the Good Constitution by John O. McGinnis,Michael B. Rappaport Pdf

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.