The Failed Promise Of Originalism

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The Failed Promise of Originalism

Author : Frank Cross
Publisher : Stanford University Press
ISBN 13 : 0804784698
Total Pages : 237 pages
Book Rating : 4.8/5 (47 download)

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Book Synopsis The Failed Promise of Originalism by : Frank Cross

Download or read book The Failed Promise of Originalism written by Frank Cross and published by Stanford University Press. This book was released on 2013-01-09 with total page 237 pages. Available in PDF, EPUB and Kindle. Book excerpt: Originalism is an enormously popular—and equally criticized—theory of constitutional interpretation. As Elena Kagan stated at her confirmation hearing, "We are all originalists." Scores of articles have been written on whether the Court should use originalism, and some have examined how the Court employed originalism in particular cases, but no one has studied the overall practice of originalism. The primary point of this book is an examination of the degree to which originalism influences the Court's decisions. Frank B. Cross tests this by examining whether originalism appears to constrain the ideological preferences of the justices, which are a demonstrable predictor of their decisions. Ultimately, he finds that however theoretically appealing originalism may seem, the changed circumstances over time and lack of reliable evidence means that its use is indeterminate and meaningless. Originalism can be selectively deployed or manipulated to support and legitimize any decision desired by a justice.

Originalism as Faith

Author : Eric J. Segall
Publisher : Cambridge University Press
ISBN 13 : 1107188555
Total Pages : 259 pages
Book Rating : 4.1/5 (71 download)

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Book Synopsis Originalism as Faith by : Eric J. Segall

Download or read book Originalism as Faith written by Eric J. Segall and published by Cambridge University Press. This book was released on 2018-10-18 with total page 259 pages. Available in PDF, EPUB and Kindle. Book excerpt: Tracing the development of originalism, Eric J. Segall shows how judges often use the theory to reach politically desirable results.

Originalism's Promise

Author : Lee J. Strang
Publisher : Cambridge University Press
ISBN 13 : 1108475639
Total Pages : 329 pages
Book Rating : 4.1/5 (84 download)

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Book Synopsis Originalism's Promise by : Lee J. Strang

Download or read book Originalism's Promise written by Lee J. Strang and published by Cambridge University Press. This book was released on 2019-08-08 with total page 329 pages. Available in PDF, EPUB and Kindle. Book excerpt: Provides the first natural law justification for an originalist interpretation of the American Constitution.

Fidelity to Our Imperfect Constitution

Author : James E. Fleming
Publisher : Oxford University Press, USA
ISBN 13 : 0199793379
Total Pages : 262 pages
Book Rating : 4.1/5 (997 download)

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Book Synopsis Fidelity to Our Imperfect Constitution by : James E. Fleming

Download or read book Fidelity to Our Imperfect Constitution written by James E. Fleming and published by Oxford University Press, USA. This book was released on 2015 with total page 262 pages. Available in PDF, EPUB and Kindle. Book excerpt: James E. Fleming argues that fidelity in interpreting the US Constitution as written requires a moral reading or philosophic approach, and that fidelity commits to honouring aspirational principles, not following the relatively specific original meanings (or original expected applications) of the founders.

The Theory and Practice of Statutory Interpretation

Author : Frank B. Cross
Publisher : Stanford University Press
ISBN 13 : 0804769818
Total Pages : 248 pages
Book Rating : 4.8/5 (47 download)

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Book Synopsis The Theory and Practice of Statutory Interpretation by : Frank B. Cross

Download or read book The Theory and Practice of Statutory Interpretation written by Frank B. Cross and published by Stanford University Press. This book was released on 2008-11-19 with total page 248 pages. Available in PDF, EPUB and Kindle. Book excerpt: Today, statutes make up the bulk of the relevant law heard in federal courts and arguably represent the most important source of American law. The proper means of judicial interpretation of those statutes have been the subject of great attention and dispute over the years. This book provides new insights into the theory and practice of statutory interpretation by courts. Cross offers the first comprehensive analysis of statutory interpretation and includes extensive empirical evidence of Supreme Court practice. He offers a thorough review of the active disputes over the appropriate approaches to statutory interpretations, namely whether courts should rely exclusively on the text or also examine the legislative history. The book then considers the use of these approaches by the justices of the recent Rehnquist Court and the degree to which they were applied by the justices, either sincerely or in pursuit of an ideological agenda.

Living Originalism

Author : Jack M. Balkin
Publisher : Harvard University Press
ISBN 13 : 0674063031
Total Pages : 481 pages
Book Rating : 4.6/5 (74 download)

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Book Synopsis Living Originalism by : Jack M. Balkin

Download or read book Living Originalism written by Jack M. Balkin and published by Harvard University Press. This book was released on 2011-11-29 with total page 481 pages. Available in PDF, EPUB and Kindle. Book excerpt: Originalism and living constitutionalism, so often understood to be diametrically opposing views of our nation’s founding document, are not in conflict—they are compatible. So argues Jack Balkin, one of the leading constitutional scholars of our time, in this long-awaited book. Step by step, Balkin gracefully outlines a constitutional theory that demonstrates why modern conceptions of civil rights and civil liberties, and the modern state’s protection of national security, health, safety, and the environment, are fully consistent with the Constitution’s original meaning. And he shows how both liberals and conservatives, working through political parties and social movements, play important roles in the ongoing project of constitutional construction. By making firm rules but also deliberately incorporating flexible standards and abstract principles, the Constitution’s authors constructed a framework for politics on which later generations could build. Americans have taken up this task, producing institutions and doctrines that flesh out the Constitution’s text and principles. Balkin’s analysis offers a way past the angry polemics of our era, a deepened understanding of the Constitution that is at once originalist and living constitutionalist, and a vision that allows all Americans to reclaim the Constitution as their own.

Decision Making in the U.S. Courts of Appeals

Author : Frank B. Cross
Publisher : Stanford University Press
ISBN 13 : 9780804757133
Total Pages : 268 pages
Book Rating : 4.7/5 (571 download)

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Book Synopsis Decision Making in the U.S. Courts of Appeals by : Frank B. Cross

Download or read book Decision Making in the U.S. Courts of Appeals written by Frank B. Cross and published by Stanford University Press. This book was released on 2007 with total page 268 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book studies the decisions of the United States circuit courts and their grounding in law and judicial ideology.

Cosmic Constitutional Theory

Author : J. Harvie Wilkinson
Publisher : OUP USA
ISBN 13 : 0199846014
Total Pages : 174 pages
Book Rating : 4.1/5 (998 download)

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Book Synopsis Cosmic Constitutional Theory by : J. Harvie Wilkinson

Download or read book Cosmic Constitutional Theory written by J. Harvie Wilkinson and published by OUP USA. This book was released on 2012-03-12 with total page 174 pages. Available in PDF, EPUB and Kindle. Book excerpt: What underlies this development? In this concise and highly engaging work, Federal Appeals Court Judge and noted author (From Brown to Bakke) J. Harvie Wilkinson argues that America's most brilliant legal minds have launched a set of cosmic constitutional theories that, for all their value, are undermining self-governance.

Common Good Constitutionalism

Author : Adrian Vermeule
Publisher : John Wiley & Sons
ISBN 13 : 1509548882
Total Pages : 171 pages
Book Rating : 4.5/5 (95 download)

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Book Synopsis Common Good Constitutionalism by : Adrian Vermeule

Download or read book Common Good Constitutionalism written by Adrian Vermeule and published by John Wiley & Sons. This book was released on 2022-02-08 with total page 171 pages. Available in PDF, EPUB and Kindle. Book excerpt: The way that Americans understand their Constitution and wider legal tradition has been dominated in recent decades by two exhausted approaches: the originalism of conservatives and the “living constitutionalism” of progressives. Is it time to look for an alternative? Adrian Vermeule argues that the alternative has been there, buried in the American legal tradition, all along. He shows that US law was, from the founding, subsumed within the broad framework of the classical legal tradition, which conceives law as “a reasoned ordering to the common good.” In this view, law’s purpose is to promote the goods a flourishing political community requires: justice, peace, prosperity, and morality. He shows how this legacy has been lost, despite still being implicit within American public law, and convincingly argues for its recovery in the form of “common good constitutionalism.” This erudite and brilliantly original book is a vital intervention in America’s most significant contemporary legal debate while also being an enduring account of the true nature of law that will resonate for decades with scholars and students.

Against the Law

Author : Paul F. Campos
Publisher : Duke University Press
ISBN 13 : 9780822318415
Total Pages : 292 pages
Book Rating : 4.3/5 (184 download)

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Book Synopsis Against the Law by : Paul F. Campos

Download or read book Against the Law written by Paul F. Campos and published by Duke University Press. This book was released on 1996 with total page 292 pages. Available in PDF, EPUB and Kindle. Book excerpt: A fundamental critique of American law and legal thought, Against the Law consists of a series of essays written from three different perspectives that coalesce into a deep criticism of contemporary legal culture. Paul F. Campos, Pierre Schlag, and Steven D. Smith challenge the conventional representations of the legal system that are articulated and defended by American legal scholars. Unorthodox, irreverent, and provocative, Against the Law demonstrates that for many in the legal community, law has become a kind of substitute religion--an essentially idolatrous practice composed of systematic self-misrepresentation and self-deception. Linked by a persistent inquiry into the nature and identity of "the law," these essays are informed by the conviction that the conventional representations of law, both in law schools and the courts, cannot be taken at face value--that the law, as commonly conceived, makes no sense. The authors argue that the relentlessly normative prescriptions of American legal thinkers are frequently futile and, indeed, often pernicious. They also argue that the failure to recognize the role that authorship must play in the production of legal thought plagues both the teaching and the practice of American law. Ranging from the institutional to the psychological and metaphysical deficiencies of the American legal system, the depth of criticism offered by Against the Law is unprecedented. In a departure from the nearly universal legitimating and reformist tendencies of American legal thought, this book will be of interest not only to the legal academics under attack in the book, but also to sociologists, historians, and social theorists. More particularly, it will engage all the American lawyers who suspect that there is something very wrong with the nature and direction of their profession, law students who anticipate becoming part of that profession, and those readers concerned with the status of the American legal system.

Keeping Faith with the Constitution

Author : Goodwin Liu
Publisher : Oxford University Press
ISBN 13 : 0199750661
Total Pages : 272 pages
Book Rating : 4.1/5 (997 download)

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Book Synopsis Keeping Faith with the Constitution by : Goodwin Liu

Download or read book Keeping Faith with the Constitution written by Goodwin Liu and published by Oxford University Press. This book was released on 2010-08-05 with total page 272 pages. Available in PDF, EPUB and Kindle. Book excerpt: Chief Justice John Marshall argued that a constitution "requires that only its great outlines should be marked [and] its important objects designated." Ours is "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." In recent years, Marshall's great truths have been challenged by proponents of originalism and strict construction. Such legal thinkers as Supreme Court Justice Antonin Scalia argue that the Constitution must be construed and applied as it was when the Framers wrote it. In Keeping Faith with the Constitution, three legal authorities make the case for Marshall's vision. They describe their approach as "constitutional fidelity"--not to how the Framers would have applied the Constitution, but to the text and principles of the Constitution itself. The original understanding of the text is one source of interpretation, but not the only one; to preserve the meaning and authority of the document, to keep it vital, applications of the Constitution must be shaped by precedent, historical experience, practical consequence, and societal change. The authors range across the history of constitutional interpretation to show how this approach has been the source of our greatest advances, from Brown v. Board of Education to the New Deal, from the Miranda decision to the expansion of women's rights. They delve into the complexities of voting rights, the malapportionment of legislative districts, speech freedoms, civil liberties and the War on Terror, and the evolution of checks and balances. The Constitution's framers could never have imagined DNA, global warming, or even women's equality. Yet these and many more realities shape our lives and outlook. Our Constitution will remain vital into our changing future, the authors write, if judges remain true to this rich tradition of adaptation and fidelity.

The Cult of the Constitution

Author : Mary Anne Franks
Publisher : Stanford University Press
ISBN 13 : 1503609103
Total Pages : 310 pages
Book Rating : 4.5/5 (36 download)

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Book Synopsis The Cult of the Constitution by : Mary Anne Franks

Download or read book The Cult of the Constitution written by Mary Anne Franks and published by Stanford University Press. This book was released on 2019-05-14 with total page 310 pages. Available in PDF, EPUB and Kindle. Book excerpt: “A powerful challenge to the prevailing constitutional orthodoxy of the right and the left . . . A deeply troubling and absolutely vital book” (Mark Joseph Stern, Slate). In this provocative book, Mary Anne Franks examines the thin line between constitutional fidelity and constitutional fundamentalism. The Cult of the Constitution reveals how deep fundamentalist strains in both conservative and liberal American thought keep the Constitution in the service of white male supremacy. Franks demonstrates how constitutional fundamentalists read the Constitution selectively and self-servingly, thus undermining the integrity of the document as a whole. She goes on to argue that economic and civil libertarianism have merged to produce a deregulatory, “free-market” approach to constitutional rights that achieves fullest expression in the idealization of the Internet. The fetishization of the first and second amendments has blurred the boundaries between conduct and speech and between veneration and violence. But the Constitution itself contains the antidote to fundamentalism. The Cult of the Constitution lays bare the dark, antidemocratic consequences of constitutional fundamentalism and urges readers to take the Constitution seriously, not selectively.

The Fugitive's Properties

Author : Stephen M. Best
Publisher : University of Chicago Press
ISBN 13 : 0226241114
Total Pages : 375 pages
Book Rating : 4.2/5 (262 download)

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Book Synopsis The Fugitive's Properties by : Stephen M. Best

Download or read book The Fugitive's Properties written by Stephen M. Best and published by University of Chicago Press. This book was released on 2010-05-15 with total page 375 pages. Available in PDF, EPUB and Kindle. Book excerpt: In this study of literature and law before and since the Civil War, Stephen M. Best shows how American conceptions of slavery, property, and the idea of the fugitive were profoundly interconnected. The Fugitive's Properties uncovers a poetics of intangible, personified property emerging out of antebellum laws, circulating through key nineteenth-century works of literature, and informing cultural forms such as blackface minstrelsy and early race films. Best also argues that legal principles dealing with fugitives and indebted persons provided a sophisticated precursor to intellectual property law as it dealt with rights in appearance, expression, and other abstract aspects of personhood. In this conception of property as fleeting, indeed fugitive, American law preserved for much of the rest of the century slavery's most pressing legal imperative: the production of personhood as a market commodity. By revealing the paradoxes of this relationship between fugitive slave law and intellectual property law, Best helps us to understand how race achieved much of its force in the American cultural imagination. A work of ambitious scope and compelling cross-connections, The Fugitive's Properties sets new agendas for scholars of American literature and legal culture.

Settled Versus Right

Author : Randy J. Kozel
Publisher : Cambridge University Press
ISBN 13 : 110712753X
Total Pages : 191 pages
Book Rating : 4.1/5 (71 download)

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Book Synopsis Settled Versus Right by : Randy J. Kozel

Download or read book Settled Versus Right written by Randy J. Kozel and published by Cambridge University Press. This book was released on 2017-06-06 with total page 191 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book analyzes the theoretical nuances and practical implications of how judges use precedent.

Law, Society and Community

Author : Richard Nobles
Publisher : Routledge
ISBN 13 : 1317107292
Total Pages : 372 pages
Book Rating : 4.3/5 (171 download)

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Book Synopsis Law, Society and Community by : Richard Nobles

Download or read book Law, Society and Community written by Richard Nobles and published by Routledge. This book was released on 2016-04-22 with total page 372 pages. Available in PDF, EPUB and Kindle. Book excerpt: This collection of socio-legal studies, written by leading theorists and researchers from around the world, offers original, perceptive and critical contributions to ideas and theories that have been expounded by Roger Cotterrell over a long and distinguished career. Engaging with many classic issues and theories of the sociology of law, the contributions are likely to become classics themselves as they tackle some of the most significant challenges that modern law faces. They do not shy away from what one of the contributors describes as the complexity and multiplicity of our contemporary legal world. The book is organized in three parts: socio-legal themes; methodological and jurisprudential themes; globalization, cultural and comparative law themes. Starting with a chapter that re-engages with the need to interpret legal ideas sociologically, and ending with one that explores the global significance of modern fascination with the idea of the rule of law, this selection offers important additions to the oeuvre of Roger Cotterrell (a list of whose academic writings is included in the book).

How to Interpret the Constitution

Author : Cass R. Sunstein
Publisher : Princeton University Press
ISBN 13 : 0691252041
Total Pages : 208 pages
Book Rating : 4.6/5 (912 download)

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Book Synopsis How to Interpret the Constitution by : Cass R. Sunstein

Download or read book How to Interpret the Constitution written by Cass R. Sunstein and published by Princeton University Press. This book was released on 2023-08-15 with total page 208 pages. Available in PDF, EPUB and Kindle. Book excerpt: From New York Times bestselling author Cass Sunstein, a timely and powerful argument for rethinking how the U.S. Constitution is interpreted The U.S. Supreme Court has eliminated the right to abortion and is revisiting other fundamental questions today—about voting rights, affirmative action, gun laws, and much more. Once-arcane theories of constitutional interpretation are profoundly affecting the lives of all Americans. In this brief and urgent book, Harvard Law School professor Cass Sunstein provides a lively introduction to competing approaches to interpreting the Constitution—and argues that the only way to choose one is to ask whether it would change American life for the better or worse. If a method of interpretation would eliminate the right of privacy, allow racial segregation, or obliterate free speech, it would be unacceptable for that reason. But some Supreme Court justices are committed to “originalism,” arguing that the meaning of the Constitution is settled by how it was publicly understood when it was ratified. Originalists insist that their approach is dictated by the Constitution. That, Sunstein argues, is a big mistake. The Constitution doesn’t contain instructions for its own interpretation. Any approach to constitutional interpretation needs to be defended in terms of its broad effects—what it does to our rights and our institutions. It must respect those rights and institutions—and safeguard the conditions for democracy itself. Passionate and compelling, How to Interpret the Constitution is essential reading for anyone who is concerned about how the Supreme Court is changing the rights and lives of Americans today.

Law and Religion in a Secular Age

Author : Rafael Domingo
Publisher : CUA Press
ISBN 13 : 0813237297
Total Pages : 353 pages
Book Rating : 4.8/5 (132 download)

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Book Synopsis Law and Religion in a Secular Age by : Rafael Domingo

Download or read book Law and Religion in a Secular Age written by Rafael Domingo and published by CUA Press. This book was released on 2023 with total page 353 pages. Available in PDF, EPUB and Kindle. Book excerpt: Law and Religion in a Secular Age seeks to restore the connection between spirituality and justice, religion and law, theology and jurisprudence, and natural law and positive law by building a new bridge suitable for pluralistic societies in the secular age. The author argues for a multidimensional view of reality that includes legal, political, moral, and spiritual dimensions of human nature and society. Each of these dimensions of life needs to recognize the existence, influence, and function of the others, which act as a filter or check on the excesses of each other. This multidimensionality of reality clarifies why no legal theory can fully account for law from the legal dimension alone, just as no moral theory makes perfect sense of morality from the moral dimension?and, for that matter, nothing in physics can fully interpret the physical dimension of reality. The premises of a legal system cannot be fully explained by the legal dimension alone because the fundamental conditions and qualities of justice, freedom, and dignity touch all the dimensions of reality in which the human person acts, including the moral and the spiritual, not just the legal. Building on this multidimensional theory of reality, the author explores the core differences and the essential interconnections between law, morality, religion, and spirituality and some of the legal implications of these connections. Rafael Domingo reminds readers of the vital role of religion in shaping the conceptual framework of Western legal systems, underscores the spirit of Christianity that inspired legal institutions, principles, and values, and recalls the contributions of specific Christian jurists as central figures for the development of justice in society. Law and Religion in a Secular Age aims to be a valuable antidote against the dominant legal positivism that has cornered public morality, the defiant secularism that has marginalized religion, and any other legal doctrine that diminishes the spiritual dimension of law and justice.