By Grant Huscroft, Bradley W. Miller
Originalism is a strength to be reckoned with in constitutional interpretation. At one time a monolithic conception of constitutional interpretation, modern originalism has built right into a subtle kin of theories approximately easy methods to interpret and cause with a structure. modern originalists harness the assets of linguistic, ethical, and political philosophy to suggest methodologies for the translation of constitutional texts and supply purposes for constancy to these texts. The essays during this quantity, which include contributions from the flag bearers of a number of competing faculties of constitutional interpretation, offers an creation to the improvement of originalist idea, showcases the nice diversity of up to date originalist constitutional scholarship, and situates competing faculties of proposal in discussion with one another. additionally they make new contributions to the methodological and normative disputes among originalists and non-originalists, and between originalists themselves.
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Extra resources for The Challenge of Originalism: Theories of Constitutional Interpretation
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Solum H. District of Columbia v. Heller & McDonald v. City of Chicago Supreme Court decisions that squarely address the fundamental issues of constitutional theory are rare, but District of Columbia v. Heller84 is such a decision. 85 The implications of the majority’s conclusion that the Second Amendment protects an individual right to possess and carry weapons were disputed by Justice Stevens and Justice Breyer in their dissenting opinions. 86 The majority opinion in Heller covers a good deal of territory, much of it contested by the dissents, but, for the purpose of completing this brief survey of the contemporary development of originalist theory, the important feature of Heller is methodological.
Further along the spectrum, some originalists might adopt the position that the original meaning should constrain constitutional doctrine but allow for circumstances in which exceptions are legitimate. One such exception might focus on the role of precedent: Some originalists may believe that the Supreme Court can legitimately adhere to precedents that are at variation with the original meaning of the text, where the restoration of the original meaning would be disruptive, upset justifiable reliance, and so forth.
Thus, the fixation thesis might be described as a core idea around which all or almost all originalist theories organize themselves. Almost all originalist theories are theories of constitutional practice – they have something to say about how officials (especially judges and paradigmatically Justices of the United States Supreme Court) should interpret and construe the Constitution. Although it would be theoretically possible for an originalist theory to limit itself to the purely linguistic claim that the semantic 34 Lawrence B.