The Challenge of Originalism: Theories of Constitutional Interpretation

doi:10.1017/CBO9781139003926

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.

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Contents

Frontmatter
pp i-iv
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Contents
pp v-vi
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Preface
pp vii-viii
- By Grant Huscroft, University of Western Ontario, Bradley W. Miller
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Contributors
pp ix-x
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The Challenge of Originalism: Theories of Constitutional Interpretation
pp 1-11
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Part One - Exposition and Defense
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1 - What Is Originalism? The Evolution of Contemporary Originalist Theory
pp 12-41
- By Lawrence B. Solum
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2 - The Case for Originalism
pp 42-69
- By Jeffrey Goldsworthy
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3 - On Pluralism within Originalism
pp 70-86
- By Keith E. Whittington
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Part Two - Interpretation and Intention
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4 - Simple-Minded Originalism
pp 87-98
- By Larry Alexander
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5 - The Intentionalist Thesis Once More
pp 99-119
- By Stanley Fish
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6 - Origin Myth: The Persons Case, the Living Tree, and the New Originalism
pp 120-146
- By Bradley W. Miller
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Part Three - Originalism and Constitutional Settlement
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7 - Originalism’s Constitution
pp 147-178
- By Grégoire C. N. Webber
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8 - The Curious Concept of the “Living Tree” (or Non-Locked-In) Constitution
pp 179-202
- By James Allan
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9 - Vagueness, Finiteness, and the Limits of Interpretation and Construction
pp 203-222
- By Grant Huscroft
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Part Four - Challenges and Critiques
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10 - That Old-Time Originalism
pp 223-245
- By Steven D. Smith
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11 - Reflective Equilibrium and Constitutional Method: Lessons from John McCain and the Natural-Born Citizenship Clause
pp 246-284
- By Mitchell N. Berman
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12 - Constitutions, Originalism, and Meaning
pp 285-300
- By Brian H. Bix
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Index
pp 301-305
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The Challenge of Originalism

Theories of Constitutional Interpretation

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Contents

Frontmatter
pp i-iv

Contents
pp v-vi

Preface
pp vii-viii

Contributors
pp ix-x

The Challenge of Originalism: Theories of Constitutional Interpretation
pp 1-11

Part One - Exposition and Defense

1 - What Is Originalism? The Evolution of Contemporary Originalist Theory
pp 12-41

2 - The Case for Originalism
pp 42-69

3 - On Pluralism within Originalism
pp 70-86

Part Two - Interpretation and Intention

4 - Simple-Minded Originalism
pp 87-98

5 - The Intentionalist Thesis Once More
pp 99-119

6 - Origin Myth: The Persons Case, the Living Tree, and the New Originalism
pp 120-146

Part Three - Originalism and Constitutional Settlement

7 - Originalism’s Constitution
pp 147-178

8 - The Curious Concept of the “Living Tree” (or Non-Locked-In) Constitution
pp 179-202

9 - Vagueness, Finiteness, and the Limits of Interpretation and Construction
pp 203-222

Part Four - Challenges and Critiques

10 - That Old-Time Originalism
pp 223-245

11 - Reflective Equilibrium and Constitutional Method: Lessons from John McCain and the Natural-Born Citizenship Clause
pp 246-284

12 - Constitutions, Originalism, and Meaning
pp 285-300

Index
pp 301-305

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Theories of Constitutional Interpretation

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