By Grant Huscroft, Bradley W. Miller
Originalism is a strength to be reckoned with in constitutional interpretation. At one time a monolithic concept of constitutional interpretation, modern originalism has constructed right into a subtle relations of theories approximately tips on how to interpret and cause with a structure. modern originalists harness the assets of linguistic, ethical, and political philosophy to suggest methodologies for the translation of constitutional texts and supply purposes for constancy to these texts. The essays during this quantity, consisting of contributions from the flag bearers of numerous competing colleges of constitutional interpretation, presents an creation to the advance of originalist inspiration, showcases the good diversity of up to date originalist constitutional scholarship, and situates competing colleges of suggestion in discussion with one another. in addition they make new contributions to the methodological and normative disputes among originalists and non-originalists, and between originalists themselves.
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Additional resources for The Challenge of Originalism: Theories of Constitutional Interpretation
Sample text
Solum, “The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future Of Unenumerated Rights,” 9 U. Pa. J. Const. L. 155 at 159 (2006) (arguing for originalist theory that gives trumping force to precedent); Lee J. M. L. Rev. 419 at 420 (2006) (offering originalist theory in which “limited respect is due some nonoriginalist constitutional precedent”). 82 Thomas B. Colby & Peter J. J. 239 (2009) [Colby and Smith, “Living Originalism”]. 83 Ibid. at 244. 30 Lawrence B.
40 Similar points could be made about what might be called “popular meaning,” the view that the relevant intentions or understandings should be those of “We the People” or the popular sovereign – the relevant actor for popular constitutionalism. If the relevant intentions are those of each and every citizen, then popular constitutionalism suffers from compounded versions of the ills that afflict intentionalism. If popular constitutionalism points to public meaning, then it is simply another version of original meaning originalism.
Without employing original meaning, judicial enforcement of the Constitution could not be legitimized by democratic constitutional politics. ” 42 Ibid. at 1022–3 (citations omitted). generally Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962); see also Kenneth D. Ward & Cecilia R. , The Judiciary and American Democracy: Alexander Bickel, the Countermajoritarian Difficulty and Contemporary Constitutional Theory (2005). 44 Ackerman, “Discovering the Constitution,” supra note 41 at 1051–2.