... scholars is his specific treatment of understanding law. Though his intentionalism might seem to lead directly to something like originalism, ¹² Hösle recommends a flexible interpretive approach for so-called “normative” contexts, a heading under which he groups both jurisprudence...

... reuse, distribution, and reproduction in any medium, provided the original work is properly cited. But not all law-making utterances (nor even all legislative ones) are ‘always speaking’. Some are momentary: their operation/application is exhausted when they are ‘spoken’. ¹² Compare...

... interpreting the original text in terms of changing linguistic conventions (on which some commentators have focused) and taking note of public reasoning today in the light of the original ‘constitutional motivation’. human rights rules of language words and meanings originalism constitutional motivation...

...This chapter addresses two common beliefs: (1) that the Canadian Constitution is a living tree, subject to evolution in light of changing circumstances and developing moral and political beliefs; and (2) that the view expressed in (1) stands in sharp contrast with American-style originalism...

...In the contemporary United States, the federal judiciary, notably including the conservative majority on the Supreme Court, embraces “textualist originalism” as the primary interpretative methodology in constitutional adjudication. Coupled with a commitment to the “original public meaning...

...In recent years, some have asked: “Are we all originalists now?” The answer depends upon whether one defines originalism exclusively or inclusively. Answering the question affirmatively suggests that one is presupposing the “originalist premise”: the assumption that originalism, rightly conceived...

...The inclusiveness of the new originalism—and its concessions regarding construction and multiple modalities requiring judgments not determined by original public meaning—has provoked discontent within originalism, for example, the emergence of “original methods originalism.” Proponents of this view...

...This chapter explores Jack Balkin’s development of the third way of a living originalism: a position that combines the appeal of both originalism and living constitutionalism and avoids the weaknesses of each. Balkin’s arguments for his living originalism over conventional varieties of originalism...

... refer to. And a concept that refers to nothing may be used in an accurate display of what someone is thinking. The book describes how concepts can be learned, originated, and given a systematic semantic description, independently of whether there exist things to which they refer. There being no things...

... recent theoretical writings seem to have reverted to a more simplistic version of originalism. His best-known opinion on the separation of powers is his dissent in a case concerning the constitutional status of the independent counsel. Originalism plays a limited role in some of Justice Scalia's most...

...Part 2 advances a relatively straightforward thesis: the original meanings of the Religion Clauses reflect the Founders’ agreements and disagreements. The Founders’ disagreements are reflected in the text of the Establishment Clause. Chapter 5 argues that the Founders adopted the Establishment...

...Part 2 advances a relatively straightforward thesis: the original meanings of the Religion Clauses reflect the Founders’ agreements and disagreements. The text of the Free Exercise Clause reflects the Founders broad agreement that religious liberty is a natural and inalienable right. Chapter 6...

... Pettit Philip on ‘always under law’ thesis as bearer of constituent power inauspicious conditions for democracy fact of Rawls Brown v Board of Education Constitution of the United States Article V of Michelman Frank I Instrument of Government 1653 Balkin Jack constitution originalism...

... be interpreted literally as protecting all speech. The original intent of those who framed it is obscure. Faced with a largely blank slate, Holmes, who believed in a living Constitution that adapted to changing and unforeseen conditions, construed the First Amendment as embodying, writ small, the same overall...

... was the original public meaning of the Due Process Clause? To say the least, the answer to that question is disputed. The topic is complicated by the Privileges or Immunities Clause. We might be keenly interested in a purely procedural reading of the Due Process Clause and insist that the Fourteenth Amendment’s...

...This chapter advocates a form of constitutional originalism that accepts originalism's major claims while rejecting the label originalism. It first considers the debates about originalism pitting originalists against living constitutionalists. After discussing the arguments for and against various...

...This chapter discusses the clash between originalism and living constitutionalism. It considers variants of originalism, with particular emphasis on unsolved problems and continuing disagreement. It suggests that originalism has limited capacity to stem a constant flow of contemporary values...

...Problems of constitutional interpretation have many faces, but much of the contemporary discussion has focused on what has come to be called “originalism.” The core of originalism is the belief that fidelity to the original understanding of the Constitution should constrain contemporary judges...

...This chapter argues that the Constitution must be interpreted according to its original meaning. This method of interpretation is commonly known as “originalism,” which is often seen as following from popular sovereignty. The chapter suggests that originalism is entailed by a commitment...

...” that is protected by the Privileges or Immunities Clause of the Fourteenth Amendment. Because ignoring all unenumerated rights violates the mandate of the Ninth Amendment, the chapter considers two alternatives: using originalism to identify specific unenumerated rights and the Presumption of Liberty. Bork Robert...