Originalism in American Law and Politics
Originalism in American Law and Politics

Author: Johnathan O'Neill

Publisher: JHU Press

Published: 2005-07-12

Total Pages: 308

ISBN-13: 9780801881114

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This book explains how the debate over originalism emerged from the interaction of constitutional theory, U.S. Supreme Court decisions, and American political development. Refuting the contention that originalism is a recent concoction of political conservatives like Robert Bork, Johnathan O'Neill asserts that recent appeals to the origin of the Constitution in Supreme Court decisions and commentary, especially by Justices Antonin Scalia and Clarence Thomas, continue an established pattern in American history. Originalism in American Law and Politics is distinguished by its historical approach to the topic. Drawing on constitutional commentary and treatises, Supreme Court and lower federal court opinions, congressional hearings, and scholarly monographs, O'Neill's work will be valuable to historians, academic lawyers, and political scientists.

Living Originalism
Living Originalism

Author: Jack M. Balkin

Publisher: Harvard University Press

Published: 2011-11-29

Total Pages: 481

ISBN-13: 0674063031

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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.

Originalism's Promise
Originalism's Promise

Author: Lee J. Strang

Publisher: Cambridge University Press

Published: 2019-08-08

Total Pages: 329

ISBN-13: 1108475639

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

Constitutional Originalism
Constitutional Originalism

Author: Robert W. Bennett

Publisher: Cornell University Press

Published: 2011-06-06

Total Pages: 223

ISBN-13: 0801461111

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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.

Originalism and the Good Constitution
Originalism and the Good Constitution

Author: John O. McGinnis

Publisher: Harvard University Press

Published: 2013-11-01

Total Pages: 309

ISBN-13: 067472626X

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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.

Originalism as Faith
Originalism as Faith

Author: Eric J. Segall

Publisher: Cambridge University Press

Published: 2018-10-18

Total Pages: 259

ISBN-13: 1107188555

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

Democracy and Equality
Democracy and Equality

Author: Geoffrey R. Stone

Publisher:

Published: 2020

Total Pages: 241

ISBN-13: 019093820X

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Brown v. Board of Education (1954) -- Mapp v. Ohio (1961) -- Engel v. Vitale (1962) -- Gideon v. Wainwright (1963) -- New York Times v. Sullivan (1964) -- Reynolds v. Sims (1964) -- Griswold v. Connecticut (1965) -- Miranda v. Arizona (1966) -- Loving v. Virginia (1967) -- Katz v. United States (1967) -- Shapiro v. Thompson (1968) -- Brandenburg v. Ohio (1969).

Constitutional Interpretation
Constitutional Interpretation

Author: Keith E. Whittington

Publisher:

Published: 1999

Total Pages: 328

ISBN-13:

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With its detailed and wide-ranging explorations in history, philosophy, and law, this book is essential reading for anyone interested in how the Constitution ought to be interpreted and what it means to live under a constitutional government."--BOOK JACKET.

Common Good Constitutionalism
Common Good Constitutionalism

Author: Adrian Vermeule

Publisher: John Wiley & Sons

Published: 2022-02-08

Total Pages: 171

ISBN-13: 1509548882

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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.

American Secession
American Secession

Author: F.H. Buckley

Publisher: Encounter Books

Published: 2020-01-14

Total Pages: 162

ISBN-13: 1641770813

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Americans have never been more divided, and we’re ripe for a breakup. The bitter partisan animosities, the legislative gridlock, the growing acceptance of violence in the name of political virtue—it all invites us to think that we’d be happier were we two different countries. In all the ways that matter, save for the naked force of law, we are already two nations. There’s another reason why secession beckons, says F.H. Buckley: we’re too big. In population and area, the United States is one of the biggest countries in the world, and American Secession provides data showing that smaller countries are happier and less corrupt. They’re less inclined to throw their weight around militarily, and they’re freer too. There are advantages to bigness, certainly, but the costs exceed the benefits. On many counts, bigness is badness. Across the world, large countries are staring down secession movements. Many have already split apart. Do we imagine that we, almost alone in the world, are immune? We had a civil war to prevent a secession, and we’re tempted to see that terrible precedent as proof against another effort. This book explodes that comforting belief and shows just how easy it would be for a state to exit the Union if that’s what its voters wanted. But if that isn’t what we really want, Buckley proposes another option, a kind of Secession Lite, that could heal our divisions while allowing us to keep our identity as Americans.