What's the point of originalism?
As of late, a remarkable array of constitutional theorists have declared themselves originalists of one sort or another, and no one is quite sure why. Or, perhaps more accurately, everyone is sure, but they all disagree with each other. For some, the originalism command springs directly from the tex...
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Veröffentlicht in: | Harvard journal of law and public policy 2014-06, Vol.37 (3), p.1123-1150 |
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Format: | Artikel |
Sprache: | eng |
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Zusammenfassung: | As of late, a remarkable array of constitutional theorists have declared themselves originalists of one sort or another, and no one is quite sure why. Or, perhaps more accurately, everyone is sure, but they all disagree with each other. For some, the originalism command springs directly from the text itself: it is a written Constitution, and the original meaning of the text itself is the law of the land; for others, such as Justice Scalia, it is the best (and perhaps only) way to restrain judges from reading their own values and policy preferences into the Constitution; and, for the philosophically inclined, Paul Grice, Ludwig Wittgenstein, and other modern, usually European, philosophers of language provide scholars with deep and complex insights into how to understand the Constitution; and so on. Many scholars now prize the views of an average person, or a hypothetical ratifier with full knowledge of all of the relevant circumstances in place of the actual intentions of the constitutional Framers. |
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ISSN: | 0193-4872 2374-6572 |