Defining originalism
Article Abstract:
Originalism is not a necessary approach to constitutional interpretation because it is not a necessary feature of law or language. The originalist approach possesses the types of implicit political, moral and social choices that legal realism attempts to make explicit. Originalism that attempts to give force to the meaning intended by the creator of law fails to encompass contract and defamation law, which both dismiss mental state and rely on text. Originalism does not work as a theory of language because it fails to define how language is used or should be used.
Publication Name: Harvard Journal of Law & Public Policy
Subject: Political science
ISSN: 0193-4872
Year: 1996
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Originalism, or who is Fred?
Article Abstract:
Originalist interpretation of constitutional law is less clear than originalists might contend because of the number of different sources of original intent: the Framers, the Ratifiers or all US citizens at that time. Originalists fail to acknowledge that changed factual determinations can alter the capacity to carry out original intent. The originalist approach also is called into question by resistance to authority that increases as the drafting of the Constitution becomes more temporally remote.
Publication Name: Harvard Journal of Law & Public Policy
Subject: Political science
ISSN: 0193-4872
Year: 1996
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The relevance of the Framers' intent
Article Abstract:
Originalist adherence to the intentions of the Framers of the Constitution is justified not because contemporary US society must be bound by their decisions but because it should want to follow the rules they established. The rules established by the Constitution were designed to carry out the principles of limited government and individual freedom that continue to be valued today. Originalism as adherence to the commands of the Framers is far less compelling.
Publication Name: Harvard Journal of Law & Public Policy
Subject: Political science
ISSN: 0193-4872
Year: 1996
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