The Challenge of Originalism

Theories of Constitutional Interpretation

Author: Grant Huscroft,Bradley W. Miller

Publisher: Cambridge University Press

ISBN: 1139505130

Category: Law

Page: N.A

View: 1058

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.

Fidelity to Our Imperfect Constitution

For Moral Readings and Against Originalisms

Author: James E. Fleming

Publisher: Oxford University Press, USA

ISBN: 0199793379

Category: Constitutional law

Page: 256

View: 3906

In recent years, some have asked "Are we all originalists now?" and many have assumed that originalists have a monopoly on concern for fidelity in constitutional interpretation. In Fidelity to Our Imperfect Constitution, James Fleming rejects originalisms-whether old or new, concrete or abstract, living or dead. Instead, he defends what Ronald Dworkin called a "moral reading" of the United States Constitution, or a "philosophic approach" to constitutional interpretation. He refers to conceptions of the Constitution as embodying abstract moral and political principles-not codifying concrete historical rules or practices-and of interpretation of those principles as requiring normative judgments about how they are best understood-not merely historical research to discover relatively specific original meanings. Through examining the spectacular concessions that originalists have made to their critics, he shows the extent to which even they acknowledge the need to make normative judgments in constitutional interpretation. Fleming argues that fidelity in interpreting the Constitution as written requires a moral reading or philosophic approach. Fidelity commits us to honoring our aspirational principles, not following the relatively specific original meanings (or original expected applications) of the founders. Originalists would enshrine an imperfect Constitution that does not deserve our fidelity. Only a moral reading or philosophic approach, which aspires to interpret our imperfect Constitution so as to make it the best it can be, gives us hope of interpreting it in a manner that may deserve our fidelity.

The Invisible Constitution in Comparative Perspective

Author: Rosalind Dixon,Adrienne Stone

Publisher: Cambridge University Press

ISBN: 110827885X

Category: Law

Page: N.A

View: 1366

Constitutions worldwide inevitably have 'invisible' features: they have silences and lacunae, unwritten or conventional underpinnings, and social and political dimensions not apparent to certain observers. The Invisible Constitution in Comparative Perspective helps us understand these dimensions to contemporary constitutions, and their role in the interpretation, legitimacy and stability of different constitutional systems. This volume provides a nuanced theoretical discussion of the idea of 'invisibility' in a constitutional context, and its relationship to more traditional understandings of written versus unwritten constitutionalism. Containing a rich array of case studies, including discussions of constitutional practice in Australia, Canada, China, Germany, Hong Kong, Israel, Italy, Indonesia, Ireland and Malaysia, this book will look at how this aspect of 'invisible constitutions' is manifested across different jurisdictions.

Human Dignity

The Constitutional Value and the Constitutional Right

Author: Aharon Barak

Publisher: Cambridge University Press

ISBN: 1316240983

Category: Political Science

Page: N.A

View: 1430

Human dignity is now a central feature of many modern constitutions and international documents. As a constitutional value, human dignity involves a person's free will, autonomy, and ability to write a life story within the framework of society. As a constitutional right, it gives full expression to the value of human dignity, subject to the specific demands of constitutional architecture. This analytical study of human dignity as both a constitutional value and a constitutional right adopts a legal-interpretive perspective. It explores the sources of human dignity as a legal concept, its role in constitutional documents, its content, and its scope. The analysis is augmented by examples from comparative legal experience, including chapters devoted to the role of human dignity in American, Canadian, German, South African, and Israeli constitutional law.

Law and Legitimacy in the Supreme Court

Author: Richard H. Fallon

Publisher: Harvard University Press

ISBN: 0674975812

Category: Constitutional law

Page: 240

View: 8261

"The book addresses questions about the roles of law and politics and the challenge of legitimacy in constitutional adjudication in the Supreme Court. With all sophisticated observers recognizing that the Justices' political outlooks influence their decision making, many political scientists, some of the public, and a few prominent judges have become Cynical Realists. In their view Justices vote based on their policy preferences, and legal reasoning is mere window-dressing. This book rejects Cynical Realism, but without denying many Realist insights. It explains the limits of language and history in resolving contentious constitutional issues. To rescue the notion that the Constitution is law that binds the Justices, the book provides an original account of what law is and means in the Supreme Court. It also offers a theory of legitimacy in Supreme Court adjudication. Given the nature of law in the Supreme Court, we need to accept and learn to respect reasonable disagreement about many constitutional issues. If so, the legitimacy question becomes: how would the Justices need to decide cases so that even those who disagree with the outcomes ought to respect the Justices' processes of decision? The book gives a fresh and counterintuitive answer to that vital question. Adapting a methodology made famous by John Rawls, it argues that the Justices should strive to achieve a "reflective equilibrium" between their interpretive principles, framed to identify the Constitution's enduring meaning, and their judgments about appropriate outcomes in particular cases, evaluated as prescriptions for the nation to live by in the future. The book blends the perspectives of law, philosophy, and political science to answer theoretical and practical questions of pressing national importance"--

How to Read the Constitution

Originalism, Constitutional Interpretation, and Judicial Power

Author: Christopher Wolfe

Publisher: Rowman & Littlefield

ISBN: 9780847682348

Category: Law

Page: 226

View: 440

This text challenges popular opinions held by many legal scholars by presenting a defence of originalist interpretations of the US Constitution. The author's controversial conclusions expand the debate over the understanding of original intention.

Justice Kennedy's Jurisprudence

The Full and Necessary Meaning of Liberty

Author: Frank J. Colucci

Publisher: N.A

ISBN: 9780700616626

Category: Law

Page: 243

View: 356

Examines the judicial philosophy of Supreme Court Justice Anthony M. Kennedy, who has been the critical swing vote on the Court for the last 20 years.

Freedom and the Rule of Law

Author: Anthony Arthur Peacock

Publisher: Rowman & Littlefield

ISBN: 9780739136188

Category: Law

Page: 293

View: 3567

Freedom and the Rule of Law takes a critical look at the historical beginnings of law in the United States, and how that history has influenced current trends regarding law and freedom. Anthony Peacock has compiled articles that examine the relationship between freedom and the rule of law in America. The rule of law is fundamental to all liberal constitutional regimes whose political orders recognize the equal natural rights of all.

Revolution by Judiciary

The Structure of American Constitutional Law

Author: Jed Rubenfeld

Publisher: Harvard University Press

ISBN: 9780674017153

Category: Law

Page: 241

View: 8275

Although constitutional law is supposed to be fixed and enduring, its central narrative in the twentieth century has been one of radical reinterpretation--Brown v. Board of Education, Roe v. Wade, Bush v. Gore. What, if anything, justifies such radical reinterpretation? How does it work doctrinally? What, if anything, structures it or limits it? Jed Rubenfeld finds a pattern in American constitutional interpretation that answers these questions convincingly. He posits two different understandings of how constitutional rights would apply or not apply to particular legislation. One is that a right would be violated if certain laws were passed. The other is that a right would not be violated. He calls the former "Application Understandings" and the latter "No-Application Understandings." He finds that constitutional law has almost always adhered to all of the original Application Understandings, but where it has departed from history, as it did in the Brown decision, it has departed from No-Application Understandings. Specifically, the Fourteenth Amendment did not prohibit racial segregation, so Rubenfeld argues that the Supreme Court had no problem reinterpreting it to prohibit it. It was a No-Application Understanding. This is a powerful argument that challenges current theories of constitutional interpretation from Bork to Dworkin. It rejects simplistic originalism, but restores historicity to constitutional theorizing.

Gerechtigkeit für Igel

Author: Ronald Dworkin

Publisher: Suhrkamp Verlag

ISBN: 3518780204

Category: Philosophy

Page: 813

View: 3665

»Der Fuchs weiß viele Dinge, aber der Igel weiß eine große Sache.« Der griechische Dichter Archilochos hat diesen Satz formuliert, Isaiah Berlin hat ihn mit seinem Tolstoi-Essay berühmt gemacht. Aber was ist diese »eine große Sache«? Ronald Dworkin liefert eine Antwort: Es sind Werte in all ihren Erscheinungsformen. Wenn wir verstehen wollen, was Wahrheit und Schönheit sind, was dem Leben Sinn verleiht, was die Moral fordert und die Gerechtigkeit verlangt, so müssen wir der Spur jener moralischen Einstellungen nachgehen, die menschliches Denken, Fühlen und Handeln durchdringen und zu einer Einheit formen. »Gerechtigkeit für Igel« ist eines jener Bücher, wie es sie in Zeiten der Füchse – der Spezialisten und Skeptiker – immer seltener gibt: eines, das aus einem einzigen Prinzip eine ganze Welt erklären und zugleich Orientierung geben möchte.

Über die Tugenden

Klugheit, Gerechtigkeit, Tapferkeit, Maß

Author: Josef Pieper

Publisher: N.A

ISBN: 9783466401727

Category: Cardinal virtues

Page: 255

View: 1340


Interpreting the Constitution

Author: Erwin Chemerinsky

Publisher: ABC-CLIO

ISBN: 0275926745

Category: Business & Economics

Page: 195

View: 574

"Interpreting The Constitution" doesn't fit neatly into the extensive literature on judicial review and constitutional interpretation that reconciles judicial review with democracy defined as majority rule. Indeed, Chemerinsky criticizes this method of interpretation and contends that the Constitution exists to protect political minorities and fundamental rights from majority rule. Chapter by chapter, he keenly defends this unique method of interpretation, challenges the general approach, and offers thorough, expert coverage.

The Flexible Constitution

Author: Sean Wilson

Publisher: Rowman & Littlefield

ISBN: 0739178156

Category: Philosophy

Page: 209

View: 2380

This is a new Wittgensteinian account of the American Constitution that provides a fresh perspective on how judges can follow a legal document written in flexible language. The book shows why originalism is incompatible with the American legal system and challenges the views of Ronald Dworkin and numerous law professors.

It Can Happen Here

Authoritarian Peril in the Age of Bush

Author: Joe Conason

Publisher: Macmillan

ISBN: 1429917024

Category: Political Science

Page: 256

View: 1931

"When fascism comes to America, it will be wrapped in the flag, carrying a cross." ---Sinclair Lewis, author of It Can't Happen Here, 1935 For the first time since the Nixon era, Americans have reason to doubt the future---or even the presence---of democracy. We live in a society where government conspires with big business and big evangelism; where ideologues and religious zealots attack logic and the scientific method; and where the ruling party encourages xenophobic nationalism based on irrational, manufactured fear. The party in power seems to seek a perpetual state of war to hold on to power, and they are willing to lie, cheat, and steal to achieve their ends. The question must be asked: Are we headed toward the end of American democracy? Nobel Prize--winning author Sinclair Lewis depicted authoritarianism American-style in his sardonically titled dystopian novel It Can't Happen Here, published in 1935. Now, bestselling political journalist Joe Conason argues that it can happen here—and a select group of extremely powerful right-wing ideologues are driving us ever closer to the precipice. In this compelling, impassioned, yet rational and fact-based look at the state of the nation, Conason shows how and why America has been wrenched away from its founding principles and is being dragged toward authoritarianism. Praise for the books of Joe Conason: "A comprehensive, well-researched indictment of a bunch of nasty people who really deserve it." ---Molly Ivins on Big Lies "When Joe casts his eye on the cadres of the right, they invariably emerge battered, with their arguments filleted, their sources of money exposed, and their real motives laid bare." —Michael Tomasky, former editor, The American Prospect, on The Raw Deal "A hundred years from now the primary source on the so-called Clinton scandals will still be The Hunting of the President by Joe Conason and Gene Lyons." ---James Carville on The Hunting of the President

Fundamentalism in American Religion and Law

Obama's Challenge to Patriarchy's Threat to Democracy

Author: David A. J. Richards

Publisher: Cambridge University Press

ISBN: 1139484133

Category: Law

Page: N.A

View: 8214

Why, from Reagan to George Bush, have fundamentalists in religion and in law (originalists) exercised such political power and influence in the United States? Why has the Republican Party forged an ideology of judicial appointments (originalism) hostile to abortion and gay rights? Why and how did Barack Obama distinguish himself among Democratic candidates not only by his opposition to the Iraq war but by his opposition to originalism? This book argues that fundamentalism in both religion and law threatens democratic values and draws its appeal from a patriarchal psychology still alive in our personal and political lives and at threat from the constitutional developments since the 1960s. The argument analyzes this psychology (based on traumatic loss in intimate life) and resistance to it (based on the love of equals). Obama's resistance to originalism arises from his developmental history as a democratic, as opposed to patriarchal, man who resists the patriarchal demands on men and women that originalism enforces - in particular, the patriarchal love laws that tell people who and how and how much they may love.