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Originalism in American Law and Politics

Author: Johnathan O'Neill

Publisher: JHU Press

Published: 2005-07-12

Total Pages: 308

ISBN-13: 9780801881114

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.

Originalism in American Law and Politics

Author: Johnathan O'Neill

Publisher: JHU Press

Published: 2007-09-17

Total Pages: 302

ISBN-13: 9780801887604

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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.

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.

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.

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

Author: John O. McGinnis

Publisher: Harvard University Press

Published: 2013-11-01

Total Pages: 377

ISBN-13: 0674727363

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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 following the original meaning be justified, given that African Americans and women were excluded from the enactment of the Constitution in 1787 and many of its subsequent Amendments? What is originalism’s place in interpretation of the Constitution, when after two hundred years there is so much 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, which is now the most prominent theory of constitutional interpretation.

Rethinking Constitutional Law

Author: Earl M. Maltz

Publisher:

Published: 1994

Total Pages: 168

ISBN-13:

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Maltz reformulates the justification for originalist review and refines originalist theory itself; he argues that a pure originalist approach mandates excessive judicial intervention under the Constitution; and he shows that most nonoriginalist theorists have failed to provide a sufficient functional justification for nonoriginalist intervention.

American Secession

Author: F.H. Buckley

Publisher: Encounter Books

Published: 2020-01-14

Total Pages: 152

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.

Democracy and Equality

Author: Geoffrey R. Stone

Publisher: Oxford University Press, USA

Published: 2020-01-06

Total Pages: 241

ISBN-13: 019093820X

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From 1953 to 1969, the Supreme Court under Chief Justice Earl Warren brought about many of the proudest achievements of American constitutional law. The Warren declared racial segregation and laws forbidding interracial marriage to be unconstitutional; it expanded the right of citizens to criticize public officials; it held school prayer unconstitutional; and it ruled that people accused of a crime must be given a lawyer even if they can't afford one. Yet, despite those and other achievements, conservative critics have fiercely accused the justices of the Warren Court of abusing their authority by supposedly imposing their own opinions on the nation. As the eminent legal scholars Geoffrey R. Stone and David A. Strauss demonstrate in Democracy and Equality, the Warren Court's approach to the Constitution was consistent with the most basic values of our Constitution and with the most fundamental responsibilities of our judiciary. Stone and Strauss describe the Warren Court's extraordinary achievements by reviewing its jurisprudence across a range of issues addressing our nation's commitment to the values of democracy and equality. In each chapter, they tell the story of a critical decision, exploring the historical and legal context of each case, the Court's reasoning, and how the justices of the Warren Court fulfilled the Court's most important responsibilities. This powerfully argued evaluation of the Warren Court's legacy, in commemoration of the 50th anniversary of the end of the Warren Court, both celebrates and defends the Warren Court's achievements against almost sixty-five years of unrelenting and unwarranted attacks by conservatives. It demonstrates not only why the Warren Court's approach to constitutional interpretation was correct and admirable, but also why the approach of the Warren Court was far superior to that of the increasingly conservative justices who have dominated the Supreme Court over the past half-century.