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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


The Proper Scope of Federal Power: The Meaning of the Commerce Clause

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/9780691159737.003.0012
Subject:
Law, Constitutional and Administrative Law

This chapter examines the propriety of federal laws under the power most often invoked to justify restrictions on liberty: the power to regulate commerce among the several states. Courts are not ... More


Constitutional Construction: Supplementing Original Meaning

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/9780691159737.003.0006
Subject:
Law, Constitutional and Administrative Law

This chapter explains how constitutional interpretation, originalist or otherwise, does not always produce unambiguous rules of law that can be applied to cases. The Constitution requires more than ... More


Judicial Review of Federal Laws: The Meaning of the Necessary and Proper Clause

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/9780691159737.003.0008
Subject:
Law, Constitutional and Administrative Law

This chapter examines whether the Necessary and Proper Clause of the Constitution precludes or invites the exercise of judicial review of a federal law to see if it lies within the powers of Congress ... More


Restoring the Lost Constitution

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/9780691159737.003.0015
Subject:
Law, Constitutional and Administrative Law

This concluding chapter argues that the original meaning of the entire Constitution, as amended, is much more libertarian than the one selectively enforced by the Supreme Court. It cites the evidence ... More


The Quest for the Historical Buddha

Hans H. Penner

in Rediscovering the Buddha: Legends of the Buddha and Their Interpretation

Published in print:
2009
Published Online:
September 2009
ISBN:
9780195385823
eISBN:
9780199870073
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195385823.003.0017
Subject:
Religion, Buddhism

The quest for the historical Buddha is a quest for the “original” or “authentic” meaning of Buddhism. This quest is the “received tradition” in the Western study of Buddhism. There are two major ... More


The Ninth Amendment and the Marshall Court

Kurt T. Lash

in The Lost History of the Ninth Amendment

Published in print:
2009
Published Online:
September 2009
ISBN:
9780195372618
eISBN:
9780199871742
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195372618.003.07
Subject:
Law, Constitutional and Administrative Law

This chapter continues the discussion of the history of the Ninth Amendment and eventually takes it to the one place where no history of it can be found—the judicial opinions of Chief Justice John ... More


Are We All Originalists Now? I Hope Not!

James E. Fleming

in Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms

Published in print:
2015
Published Online:
August 2015
ISBN:
9780199793372
eISBN:
9780199364411
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199793372.003.0001
Subject:
Law, Constitutional and Administrative Law

In recent years, some have asked: “Are we all originalists now?” The answer depends upon whether one defines originalism exclusively or inclusively. Answering the question affirmatively suggests that ... More


The New Originalist Manifesto

James E. Fleming

in Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms

Published in print:
2015
Published Online:
August 2015
ISBN:
9780199793372
eISBN:
9780199364411
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199793372.003.0002
Subject:
Law, Constitutional and Administrative Law

This chapter examines the new originalism, which stresses: (1) original public meaning (as contrasted with the old originalists’ emphasis on the intention of the framers) and (2) the significance of ... More


Text and Originalism

George Thomas

in The (Un)Written Constitution

Published in print:
2021
Published Online:
September 2021
ISBN:
9780197555972
eISBN:
9780197556009
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780197555972.003.0003
Subject:
Political Science, American Politics

Scalia is originalism and textualism’s most visible advocate—as is evident in his being taken as the model jurist for the appointment of justices Gorscuh, Kavanaugh, and Barrett—even while his ... More


Norms of Word Meaning Litigation

Peter Ludlow

in Living Words: Meaning Underdetermination and the Dynamic Lexicon

Published in print:
2014
Published Online:
August 2014
ISBN:
9780198712053
eISBN:
9780191781407
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780198712053.003.0002
Subject:
Philosophy, Philosophy of Language

This chapter considers cases in we consciously litigate the meaning of terms—e.g. terms like ‘planet’, ‘person’, and ‘rape’. In some cases much rides on the outcome of the meaning litigation, and we ... More


Conclusion: The Inescapability of Constitutional Judgment

George Thomas

in The (Un)Written Constitution

Published in print:
2021
Published Online:
September 2021
ISBN:
9780197555972
eISBN:
9780197556009
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780197555972.003.0007
Subject:
Political Science, American Politics

Being faithful to the text of the Constitution inescapably requires us to make judgments that are not rooted in constitutional text. Even if we agree that we are bound by the formal written ... More


The Theology and Politics of the Religion Clauses

John Witte Jr., Joel A. Nichols, and Richard W. Garnett

in Religion and the American Constitutional Experiment

Published in print:
2022
Published Online:
May 2022
ISBN:
9780197587614
eISBN:
9780197654378
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780197587614.003.0003
Subject:
Religion, Religious Studies

This chapter summarizes the four major views on religious freedom that dominated the eighteenth-century American founding era. We label these views Puritan, Evangelical, Enlightenment, and Civic ... More


The (Un)Written Constitution

George Thomas

Published in print:
2021
Published Online:
September 2021
ISBN:
9780197555972
eISBN:
9780197556009
Item type:
book
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780197555972.001.0001
Subject:
Political Science, American Politics

The late Justice Scalia relished pointing to departures from text as departures from the Constitution, but in fact his jurisprudence relied on unwritten ideas. As textualism has become more prominent ... More


Limits to Legislation

Michael Tugendhat

in Liberty Intact: Human Rights in English Law

Published in print:
2016
Published Online:
February 2017
ISBN:
9780198790990
eISBN:
9780191833403
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780198790990.003.0014
Subject:
Law, Human Rights and Immigration, Constitutional and Administrative Law

Parliament is a a permanent constitutional convention. Judges can judicially review all legislation that is not a statute. A codified constitution and a statute differ from human rights: they are ... More


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