Original Intent and the Constitution: A Philosophical Study

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Rowman & Littlefield, 1992 - Law - 227 pages
Original 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.

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Contents

The Nature and Varieties of Originalism
17
The Most Defensible Form of Originalism
39
Three Misconceived Objections to Originalism
67
Copyright

4 other sections not shown

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About the author (1992)

Gregory Bassham is associate professor of philosophy at King's College. His articles have appeared in Analysis and the Notre Dame Journal of Law, Ethics, and Public Policy.

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