David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jonathan Jenkins Ichikawa
Jack Alan Reynolds
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Philosophy Compass 4 (4):682-702 (2009)
Constitutional interpretation is problematic because it can be difficult to distinguish legitimate interpretation from illegitimate change. The distinction depends largely on what a constitution is. A constitution, like any other law, necessarily has a meaning, which pre-exists judicial interpretation: it is not a set of meaningless marks on paper. Any plausible constitutional theory must offer an account of the nature of that meaning. In doing so, it must address two main questions. The first is whether the meaning of the constitution is given solely by its words, or also by additional evidence of underlying intentions, purposes or values. The second question is whether, in either case, its meaning is determined by the original meanings, intentions, purposes or values of the founding generation, or by contemporary meanings, intentions, purposes or values. This question divides so-called 'originalists' from 'non-originalists'. This article discusses all these alternatives, and the main arguments for and against them. It is subtitled 'Originalism' because it defends a moderate version of that position; however, it is argued that this is equivalent to a moderate version of non-originalism
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References found in this work BETA
Ronald M. Dworkin (1988). Law's Empire. Harvard University Press.
Ronald Dworkin (2006). Justice in Robes. Belknap Press.
John Searle (1990). Collective Intentions and Actions. In Philip R. Cohen Jerry Morgan & Martha Pollack (eds.), Intentions in Communication. MIT Press. pp. 401-415.
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Citations of this work BETA
Mitchell N. Berman (2011). Constitutional Interpretation: Non-Originalism. Philosophy Compass 6 (6):408-420.
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Jeffrey Goldsworthy (2011). The Case for Originalism. In Grant Huscroft & Bradley W. Miller (eds.), The Challenge of Originalism: Essays in Constitutional Theory. Cambridge University Press.
Grant Huscroft & Bradley W. Miller (eds.) (2011). The Challenge of Originalism: Theories of Constitutional Interpretation. Cambridge University Press.
Frederick Mark Gedicks, Conservatives, Liberals, Romantics: The Persistent Quest for Certainty in Constitutional Interpretation.
Bradley Miller (2009). Beguiled by Metaphors: The ‘Living Tree’ and Originalist Constitutional Interpretation in Canada. Canadian Journal of Law and Jurisprudence 22 (2):331-354.
Grégoire C. N. Webber (2011). Originalism's Constitution. In Grant Huscroft & Bradley W. Miller (eds.), The Challenge of Originalism: Essays in Constitutional Theory. Cambridge University Press.
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