Constitutional Originalism

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  • Format: Hardcover
  • Copyright: 2011-06-16
  • Publisher: Cornell Univ Pr

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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.

Table of Contents

Prefacep. vii
We Are All Originalists Nowp. 1
What Is Originalism?p. 1
Should We Be Originalists?p. 36
Originalism and Living Constitutionalismp. 64
Originalism and the Living American Constitutionp. 78
Originalism and Living Constitutionalismp. 78
Wrestling with the Troubles of Originalismp. 84
Implications for Living Constitutionalismp. 120
Living with a Living Constitutionp. 138
The Failure of Originalism as Restraintp. 141
Living with Originalism: A Response byp. 143
Can Original Meaning Constrain?p. 143
The Levels-of-Generality Pseudoproblemp. 148
The Role of Values in Constitutional Constructionp. 150
Dead Handsp. 152
Transitions and Precedentp. 157
Original Intent Revisitedp. 160
Originalism and Politicsp. 163
Are We All Living Constitutionalists Now?: A Response byp. 165
The Interpretive Role of Nonoriginalism in Solum's Schemep. 165
Extent of Liveliness in Solum's Constitutional Law and Bennett'sp. 169
Normative Choices in Interpretationp. 175
Ordinary or Technical Meaningp. 177
The Limits of Constraint Based on Languagep. 178
Notesp. 181
Suggested Readingsp. 199
Indexp. 205
Table of Contents provided by Ingram. All Rights Reserved.

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