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: 493

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: 4490

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.

Law Under a Democratic Constitution

Essays in Honour of Jeffrey Goldsworthy

Author: Lisa Burton Crawford,Patrick Emerton,Dale Smith

Publisher: Bloomsbury Publishing

ISBN: 1509920870

Category: Law

Page: 336

View: 7794

Jeffrey Goldsworthy is a renowned constitutional scholar and legal theorist whose work on the powers of Parliament and the interpretation of constitutional and statute laws has helped shape debates on these topics across the English-speaking world. The importance of democratic constitutionalism is central to Professor Goldsworthy's work: it lies at the heart of his defence of Parliamentary supremacy and shapes his approach to both constitutional and statutory interpretation. In honour of Professor Goldsworthy's retirement, this collection provides new perspectives from a range of leading public law scholars and theorists on the legal and philosophical principles that govern the making and interpretation of laws in a constitutional democracy. It also addresses some of the challenges to democratic constitutionalism that have arisen in light of contemporary developments in Australia, Canada, New Zealand, the United Kingdom and the United States.

The Invisible Constitution in Comparative Perspective

Author: Rosalind Dixon,Adrienne Stone

Publisher: Cambridge University Press

ISBN: 110827885X

Category: Law

Page: N.A

View: 4337

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: 9959

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.

Freedom and the Rule of Law

Author: Anthony Arthur Peacock

Publisher: Rowman & Littlefield

ISBN: 9780739136188

Category: Law

Page: 293

View: 960

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.

How to Read the Constitution

Originalism, Constitutional Interpretation, and Judicial Power

Author: Christopher Wolfe

Publisher: Rowman & Littlefield

ISBN: 9780847682348

Category: Law

Page: 226

View: 6689

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.

Interpreting the Constitution

Author: Erwin Chemerinsky

Publisher: ABC-CLIO

ISBN: 0275926745

Category: Business & Economics

Page: 195

View: 8386

"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 End of the Charter Revolution

Looking Back from the New Normal

Author: Peter J. McCormick

Publisher: University of Toronto Press

ISBN: 144260641X

Category: Political Science

Page: 304

View: 9126

The Canadian Charter of Rights and Freedoms became an entrenched part of the Canadian Constitution on April 17, 1982. The Charter represented a significant change in Canadian constitutional order and carried the courts, and the Supreme Court in particular, decisively into some of the biggest controversies in Canadian politics. Although the impact of the Charter on Canadian law and society was profound, a new status quo has been established. Even though there will be future Charter surprises and decisions that will claim news headlines, Peter J. McCormick argues that these cases will be occasional rather than frequent, and that the Charter "revolution" is over. Or, as he puts it in his introduction, "I will tell a story about the Charter, about the big ripples that have gradually but steadily died away such that the surface of the pond is now almost smooth." The End of the Charter Revolution explores the Canadian Charter of Rights and Freedoms, beginning with a general historical background, followed by a survey of the significant changes brought about as Charter decisions were made. The book addresses a series of specific cases made before the Dickson, Lamer, and McLachlin Courts, and then provides empirical data to support the argument that the Charter revolution has ended. The Supreme Court has without question become "a national institution of the first order," but even though the Charter is a large part of why this has happened, it is not Charter decisions that will showcase the exercise of this power in the future.

It Can Happen Here

Authoritarian Peril in the Age of Bush

Author: Joe Conason

Publisher: Macmillan

ISBN: 1429917024

Category: Political Science

Page: 256

View: 7626

"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: 6045

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.

The Language of Law

Author: Andrei Marmor

Publisher: OUP Oxford

ISBN: 0191023957

Category: Law

Page: 200

View: 5901

The close connection between philosophy of language and philosophy of law has been recognized for decades through the work of many influential legal philosophers. This volume brings recent advances in philosophy of language to bear on contemporary debates about the nature of law and legal interpretation. The book builds on recent work in pragmatics and speech-act theory to explain how, and to what extent, legal content is determined by linguistic considerations. At the same time, the analysis shows that some of the unique features of communication in the legal domain - in particular, its strategic nature - can be employed to put pressure on certain assumptions in philosophy of language. This enables a more nuanced picture of how semantic and pragmatic determinants of communication work in complex and large-scale systems such as law. Chapters build on explanations of key elements of statutory language, such as the distinction between what is said and what is implicated, the possibility of ascribing truth-values to legal prescriptions and the structure of legal inferences, the various forms of vagueness in the law, the distinctions between vagueness, ambiguity, and polysemy in legal language, and the distinction between concept and conceptions, mostly in the context of constitutional interpretation. The book demonstrates that paying close attention to the kind of speech acts legal directives are, and how they determine the content of the law, enables a better understanding of the boundaries between normative and linguistic determinants of legal content.

Law and Legitimacy in the Supreme Court

Author: Richard H. Fallon

Publisher: Harvard University Press

ISBN: 0674975812

Category: Constitutional law

Page: 240

View: 9997

"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"--

Originalism and the Good Constitution

Author: John O. McGinnis,Michael B. Rappaport

Publisher: Harvard University Press

ISBN: 067472626X

Category: Law

Page: 308

View: 3839

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.

Law, Hermeneutics and Rhetoric

Author: Professor Francis J Mootz III

Publisher: Ashgate Publishing, Ltd.

ISBN: 1409481921

Category: Law

Page: 492

View: 6961

Mootz offers an antidote to the fragmentation of contemporary legal theory with a collection of essays arguing that legal practice is a hermeneutical and rhetorical event that can best be understood and theorized in those terms. This is not a modern insight that wipes away centuries of dogmatic confusion; rather, Mootz draws on insights as old as the Western tradition itself. However, the essays are not antiquarian or merely descriptive, because hermeneutical and rhetorical philosophy have undergone important changes over the millennia. To "return" to hermeneutics and rhetoric as touchstones for law is to embrace dynamic traditions that provide the resources for theorists who seek to foster persuasion and understanding as an antidote to the emerging global order and the trend toward bureaucratization in accordance with expert administration, violent suppression, or both.

Philosophy of Law

Author: Joel Feinberg,Hyman Gross

Publisher: N.A

ISBN: N.A

Category: Jurisprudence

Page: 756

View: 7193

This leading anthology contains legal cases and essays written by the best scholars in legal philosophy, representing all major points of view on central topics in philosophy of law. This classic text is distinguished by its clarity, readability, balance of topics, balance of substantive positions on controversial questions, topical relevance, imaginative use of cases and stories, and the inclusion of only lightly-edited or untouched classics. This revision is marked by inclusion of many articles relevant to womens issues and a greater emphasis on concrete legal problems.