Original Intent and the Constitution: A Philosophical StudyOriginal Intent and the Constitution is the first full-length study by a professional philosopher of one of the most important constitutional controversies of our time: whether courts, in deciding constitutional cases, must adhere to the "original intent" of the framers. Bassham's central aim is to clarify and to advance the current debate over original intent by bringing to bear on it some of the techniques and conceptual resources of contemporary analytic philosophy. He begins by providing a clear, nontechnical historical introduction to the current debate. Bassham then carefully sorts through the various conflicting ways in which originalism has been characterized in the literature. Having clarified the nature of originalism and presented a topology of originalist theories, Bassham then seeks to determine which of these forms of the theory is most defensible. He argues that a number of standard objections to originalism have little or no force against this most plausible form of the theory. He nonetheless concludes that even this most plausible form of the theory is fatally flawed and should be rejected. The book concludes by sketching a "broadly pragmatic" alternative to originalism - one rooted in the legal thought of one of America's greatest legal pragmatists, Benjamin Cardozo. |
Contents
The Nature and Varieties of Originalism | 17 |
The Most Defensible Form of Originalism | 39 |
Three Misconceived Objections to Originalism | 67 |
Copyright | |
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American Constitutional apply argued argument believed Berger Bill of Rights binding Bork California Law Review Cambridge capital punishment Cardozo causal theorists Chemerinsky claim Clause clearly conceptions Congress constitutional adjudication Constitutional Interpretation constitutional language Constitutional Law constitutional provisions constitutionality construed Convention decisions defensible dissenting doctrine Due Process Dworkin Eighth Amendment enact enforce Equal Protection example federal Fifth Amendment form of originalism Fourteenth Amendment framers framers intended Government by Judiciary Harvard Law Review Ibid intention votes intentionalists interpretive intentions judges Judicial Review jurisprudence Justice lawmaking Legal Realism majority moderate intentionalism moderate intentionalists moral nonoriginalist noted original intent Original Meaning Original Understanding originalists Perry political principle punishment Raoul Berger ratifiers realists Robert Bork rule Scalia scope beliefs semantic intentions Stare Decisis statute Statutory Interpretation Supreme Court Tempting of America textualism textualist theory of constitutional Theory of Interpretation tion tional traditional United Washington D.C. York