Sentences with phrase «originalism as»

Jennifer Senior: Had you already arrived at originalism as a philosophy?

There's lots of good arguments against originalism as a method of constitutional interpretation.

In the interview he says the book sets out in detail the full range of originalism as he understands it (with the help of co-author Bryan Garner, Editor of Black's Law Dictionary).

Those who reject originalism as a judicial philosophy generally say that the Constitution is a «living document» which changes in meaning as society changes.

Not exact matches

Originalism's critics say judges should treat the Constitution as a living, breathing document that's able to encompass society's evolving values.

Conservatives can not push enough Democrats and wobbly moderates toward greater comfort with originalist - like its - the - only - Constitution - we've - got thinking, can not get them to sacrifice the judicial avenue to what they see as policy goodies, or get them to really censure the kinds of unconstitutional short - cuts Obama is modeling, if they think that folks like you and I believe that Real originalism would ban hours - laws, collective bargaining, etc..

Maltz's critique of Brown is a masterly essay on originalism that endorses the result in the case but properly rejects the reasoning as unmoored in the original understanding of the Fourteenth Amendment.

Maybe we should apply right wing legal hero Scalia's «originalism» legal reasoning consistently and determine that the Second Amendment permits folks to have as many single shot muskets as they wish.

As many commentators have convincingly explained, it is difficult to square this position with the original understanding of the Fourteenth Amendment's equal protection clause (see Eric Schnapper's «Affirmative Action and the Legislative History of the Fourteenth Amendment»; Michael Klarman's «Brown, Originalism, and Constitutional Theory»; and Jed Rubenfeld's «Affirmative Action»).

It remains a puzzle why Scalia was willing to abandon originalism in some cases but not in others, even when, as in the flag - burning case, the originalist approach led to outcomes that he almost certainly disfavored personally.

Critics of originalism such as Michael Klarman have pointed out that Brown is difficult to justify on originalist grounds, as there is little evidence that the equal protection clause was originally understood to outlaw school segregation.

But to ignore originalism and break from precedent to reach a result that is consistent with a personal policy preference is difficult to defend as legally principled.

In some high - profile cases, Scalia followed originalism even when it led to results that he almost certainly did not favor as a matter of policy.

Justice Antonin Scalia was a staunch proponent of «originalism» in constitutional jurisprudence, an approach to deciding cases based on constitutional text as it was originally understood by its authors.

These Mertonian norms include: communalism, universalism, disinterestedness, originalism, and organized skepticism... These norms have been described as follows: «Communalism: Science is public knowledge, freely available to all... Universalism: There are no privileged sources of scientific knowledge... Disinterestedness: Science is done for its own sake.

The philosophy section covers topics such as judicial activism, originalism, stare decisis and strict constructionism.

One of the best arguments for the inherent value of historical legal materials is the philosophy of «originalism» as espoused by Justice Scalia and Justice Thomas of the US Supreme Court.

Originalism, of course, is the view that constitutions mean what their framers thought they meant, as versus the view that constitutions evolve with the times.

The truth, as we have seen, is that Edwards was itself a model of originalism and exemplified the proper method of statutory interpretation that was accepted for much if not most of Canadian history.

Following from this erroneous premise, the Court declared open season on originalism: «[i] f the Canadian Constitution is to be regarded as a «living tree»... then the determination of categories existing in 1867 becomes of little, other than historic, concern.»

Secondly, insofar as the court is forced to weigh in on moral or public policy debates, originalism ensures that, with very few exceptions, this only happens once.

Originalism is often disparaged as thinly veiled political conservatism; but this is not borne out by the history of constitutional jurisprudence.

In sum, the decision that is held up in Canada as the seminal defence of the living tree doctrine actually advocates textual originalism.

43 In this vein, originalism should be treated like any other canon of interpretation — it should be utilized to discern the true meaning of a text, but as with other canons, it is not absolute.

Ultimately, Sunstein's point is that judges do not consistently identify as one specific persona, but that the standard theories of constitutional interpretation (originalism, moralism, etc) can lead to the adoption of one or another of the personae depending on the occasion.

When the word «originalism» began appearing in legal periodicals in the 1980s, a number of influential scholars and judges, primarily on the right, quickly came to treat it as the sole legitimate method to decide constitutional cases.

As William Baude suggests in a recent essay exploring originalism's ability to constrain judges, «originalism can still have constraining power, but mostly for those who seek to be bound».

But as the emerging Canadian scholarship that takes originalism seriously shows, these denunciations do not tell us the whole story.

Prof. Karazivan raises interesting questions: what is, and what should be, the mix of originalism and living constitutionalism in the Supreme Court's treatment of constitutional structure — understood as the set of institutions that make up Canada's government, and the relations among them.