Constitutional interpretation: Originalism

Philosophy Compass 4 (4):682-702 (2009)
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Abstract

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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Citations of this work

Constitutionalism.Wil Waluchow - 2008 - Stanford Encyclopedia of Philosophy.

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References found in this work

Law’s Empire.Ronald Dworkin - 1986 - Harvard University Press.
Collective Intentions and Actions.John Searle - 1990 - In Philip R. Cohen Jerry Morgan & Martha Pollack (eds.), Intentions in Communication. MIT Press. pp. 401-415.
Justice in robes.Ronald Dworkin (ed.) - 2006 - Cambridge, Mass.: Belknap Press.
Against Theory.Steven Knapp & Walter Benn Michaels - 1982 - Critical Inquiry 8 (4):723-742.
Intention and interpretation: A last look.Jerrold Levinson - 1992 - In Gary Iseminger (ed.), Intention and interpretation. Philadelphia: Temple University Press. pp. 221--56.

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