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Constitutional Interpretation: The Basic Questions

Sotirios A. Barber and James E. Fleming

Published in print:
2007
Published Online:
January 2009
ISBN:
9780195328578
eISBN:
9780199855339
Item type:
book
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195328578.001.0001
Subject:
Law, Constitutional and Administrative Law

What is the nature of the US Constitution? How ought it to be interpreted? Ronald Dworkin famously argued that fidelity in interpreting the Constitution as written calls for a fusion of ... More


The Presumption of Liberty: Protecting Rights without Listing Them

Randy E. Barnett

in Restoring the Lost Constitution: The Presumption of Liberty

Published in print:
2013
Published Online:
October 2017
ISBN:
9780691159737
eISBN:
9781400848133
Item type:
chapter
Publisher:
Princeton University Press
DOI:
10.23943/princeton/9780691159737.003.0011
Subject:
Law, Constitutional and Administrative Law

This chapter examines how a Presumption of Liberty can protect the unenumerable rights retained by the people by shifting the background interpretive presumption of constitutionality whenever ... More


What I Have Learned Since the First Edition

Randy E. Barnett

in Restoring the Lost Constitution: The Presumption of Liberty

Published in print:
2013
Published Online:
October 2017
ISBN:
9780691159737
eISBN:
9781400848133
Item type:
chapter
Publisher:
Princeton University Press
DOI:
10.23943/princeton/9780691159737.003.0016
Subject:
Law, Constitutional and Administrative Law

In this afterword, the author reflects on the lessons that he has learned since the publication of the book's first edition in 2004 from the realms of both constitutional scholarship and ... More


Constitutional Interpretation: An Originalism for Nonoriginalists

Randy E. Barnett

in Restoring the Lost Constitution: The Presumption of Liberty

Published in print:
2013
Published Online:
October 2017
ISBN:
9780691159737
eISBN:
9781400848133
Item type:
chapter
Publisher:
Princeton University Press
DOI:
10.23943/princeton/9780691159737.003.0005
Subject:
Law, Constitutional and Administrative Law

This chapter argues that the Constitution must be interpreted according to its original meaning. This method of interpretation is commonly known as “originalism,” which is often seen as following ... More


Broad Originalism

Sotirios A. Barber and James E. Fleming

in Constitutional Interpretation: The Basic Questions

Published in print:
2007
Published Online:
January 2009
ISBN:
9780195328578
eISBN:
9780199855339
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195328578.003.0007
Subject:
Law, Constitutional and Administrative Law

Broad originalists seek a middle way between narrow or concrete originalism and abstract originalism or the philosophic approach. They agree that concrete originalism is, for various theoretical and ... More


Wills

Kent Greenawalt

in Legal Interpretation: Perspectives from Other Disciplines and Private Texts

Published in print:
2010
Published Online:
January 2011
ISBN:
9780199756131
eISBN:
9780199855292
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199756131.003.0008
Subject:
Law, Philosophy of Law

This chapter argues that among written documents with legal authority, the reasons for emphasizing the writer's intent in some form are strongest for wills. Wills resemble a principal's instructions ... More


Constitutional Originalism: A Debate

Robert.W Bennett and Lawrence B. Solum

Published in print:
2011
Published Online:
August 2016
ISBN:
9780801447938
eISBN:
9780801460630
Item type:
book
Publisher:
Cornell University Press
DOI:
10.7591/cornell/9780801447938.001.0001
Subject:
Law, Constitutional and Administrative Law

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 ... More


Conservatives and the Courts

Michael Greve

in Crisis of Conservatism?: The Republican Party, the Conservative Movement, and American Politics After Bush

Published in print:
2011
Published Online:
September 2011
ISBN:
9780199764013
eISBN:
9780199897186
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199764013.003.0011
Subject:
Political Science, American Politics

This chapter inventories the accomplishments and defeats of the conservative legal movement. It argues that the conservative legal movement has a high degree of professionalism, financial stability ... More


Conservative Tensions and the Republican Future

Joel D. Aberbach and Gillian Peele

in Crisis of Conservatism?: The Republican Party, the Conservative Movement, and American Politics After Bush

Published in print:
2011
Published Online:
September 2011
ISBN:
9780199764013
eISBN:
9780199897186
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199764013.003.0017
Subject:
Political Science, American Politics

The contributors to this volume have identified a range of tensions and fissures in the conservative movement and fissures in the conservative movement and a significant level of doubt and ... More


The Grasping Hand: 'Kelo v. City of New London' and the Limits of Eminent Domain

Ilya Somin

Published in print:
2016
Published Online:
September 2017
ISBN:
9780226422169
eISBN:
9780226456829
Item type:
book
Publisher:
University of Chicago Press
DOI:
10.7208/chicago/9780226456829.001.0001
Subject:
Law, Constitutional and Administrative Law

In Kelo v. City of New London (2005), the Supreme Court ruled that government can take private property and give it to another private owner in order to promote “economic development,” even though ... More


The Philosophic Approach

Sotirios A. Barber and James E. Fleming

in Constitutional Interpretation: The Basic Questions

Published in print:
2007
Published Online:
January 2009
ISBN:
9780195328578
eISBN:
9780199855339
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195328578.003.0010
Subject:
Law, Constitutional and Administrative Law

This chapter defends the philosophic approach to constitutional interpretation. This thinking for oneself must be conducted with an attitude of self-criticism, seeing constitutional interpretation as ... More


Narrow Originalism/Intentionalism

Sotirios A. Barber and James E. Fleming

in Constitutional Interpretation: The Basic Questions

Published in print:
2007
Published Online:
January 2009
ISBN:
9780195328578
eISBN:
9780199855339
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195328578.003.0006
Subject:
Law, Constitutional and Administrative Law

Narrow originalists contend that constitutional interpreters can avoid philosophical reflection and choice by determining and enforcing the relatively concrete intentions (or original meanings or ... More


Should Constitutional Judges be Philosophers?

Christopher L. Eisgruber

in Exploring Law's Empire: The Jurisprudence of Ronald Dworkin

Published in print:
2008
Published Online:
January 2009
ISBN:
9780199546145
eISBN:
9780191706462
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199546145.003.0002
Subject:
Law, Philosophy of Law

Ronald Dworkin's ‘moral reading of the Constitution’ insists that the Constitution ‘invokes moral principles about political decency and justice’. Some critics worry that the moral reading is too ... More


The Place of History and Philosophy in the Moral Reading of the American Constitution

James E. Fleming

in Exploring Law's Empire: The Jurisprudence of Ronald Dworkin

Published in print:
2008
Published Online:
January 2009
ISBN:
9780199546145
eISBN:
9780191706462
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199546145.003.0003
Subject:
Law, Philosophy of Law

Dworkin argues that commitment to interpretive fidelity requires that we recognize that the Constitution embodies abstract moral principles rather than laying down a particular historical conception, ... More


Canada: From Privy Council to Supreme Court

Peter W. Hogg

in Interpreting Constitutions: A Comparative Study

Published in print:
2007
Published Online:
January 2010
ISBN:
9780199226474
eISBN:
9780191706707
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199226474.003.0003
Subject:
Law, Comparative Law

Canada has no single document that is customarily described as ‘the constitution’. The closest approximation of such a document is the Constitution Act 1867, which was originally named the British ... More


Living with Originalism

Lawrence B. Solum

in Constitutional Originalism: A Debate

Published in print:
2011
Published Online:
August 2016
ISBN:
9780801447938
eISBN:
9780801460630
Item type:
chapter
Publisher:
Cornell University Press
DOI:
10.7591/cornell/9780801447938.003.0003
Subject:
Law, Constitutional and Administrative Law

This chapter comments on Robert Bennett's critique of originalism, especially the latter's claim that the original meaning of the Constitution cannot constrain constitutional decision making. Bennett ... More


Constitutional Principles: Political Rights

ALAN BRUDNER

in Constitutional Goods

Published in print:
2007
Published Online:
January 2010
ISBN:
9780199225798
eISBN:
9780191706516
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199225798.003.0004
Subject:
Law, Constitutional and Administrative Law

This chapter discusses the shape of the political rights generated by the constitution of liberty — in particular, the contours of the right to political speech, election spending, and equality. It ... More


Constitutional process

Christopher J. Peters

in A Matter of Dispute: Morality, Democracy, and Law

Published in print:
2011
Published Online:
May 2011
ISBN:
9780195387223
eISBN:
9780199894338
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195387223.003.0009
Subject:
Law, Philosophy of Law

This chapter continues Chapter 7's defense of constitutional law and judicial review, focusing on both the relative impartiality and the reasonable competence of constitutional procedures. It ... More


Rethinking the European Court of Human Rights

Luzius Wildhaber

in The European Court of Human Rights between Law and Politics

Published in print:
2011
Published Online:
September 2011
ISBN:
9780199694495
eISBN:
9780191729782
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199694495.003.0011
Subject:
Law, Public International Law, Human Rights and Immigration

This chapter discusses the need fundamentally to reform the Court. The chapter argues that the focus should be on the most serious or structural human rights violations, and that a departure from ... More


Deferentialism, Living Originalism, and the Constitution

Scott Soames

in The Nature of Legal Interpretation: What Jurists Can Learn about Legal Interpretation from Linguistics and Philosophy

Published in print:
2017
Published Online:
January 2018
ISBN:
9780226445021
eISBN:
9780226445168
Item type:
chapter
Publisher:
University of Chicago Press
DOI:
10.7208/chicago/9780226445168.003.0009
Subject:
Law, Constitutional and Administrative Law

In this chapter, the author compares two recent versions of originalism – his own, which he calls “Deferentialism” and Jack Balkin’s Living Originalism. After beginning with a brief summary of the ... More


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