Search Results For:

Search Results for: originalism

With the current Second Amendment jurisprudence, its practitioners on the Court have utterly lost their way.  
Conservatives are indebted to those who fought for the soul of the Court. 
Originalism in Theology and Law is a welcome salvo in an ecumenical and interdisciplinary conversation that has been too long dominated by originalism’s critics.
While some legal scholars have criticized the recently leaked draft Dobbs majority opinion on the basis that it is not originalist, they are overlooking two important points—originalism contains a place for stare decisis (i.e., legal precedent) and American constitutional practice is currently an eclectic mix of originalist and nonoriginalist aspects.
One might wish that the Free Exercise Clause, as originally understood, had provided a basis for more judicial protection of religious rights than it does. But wishing doesn’t make it so. Judges don’t have the authority to interpret the Constitution to get better policy results, even if those are really, really important results.
Many key constitutional clauses were drafted as compromise provisions intended to win over the members of intensely warring intellectual and political tribes. This ought to cut strongly in favor of a dispositional humility about an interpreter’s ability to definitively discern the most accurate original meanings of these clauses. In these situations, statesmen ought to err on the side of certain substantive ideals of natural justice, human flourishing, and the common good.
Common-good originalism’s historical understanding of the Constitution’s adoption is perhaps its weakest link. The Constitution emerged from a negotiated consensus of a complex popular sovereign—a fact that ought to reinforce a judge’s commitment to the written text.
After decades of struggle, the conservative judicial project has finally produced a possible working majority of five originalists on the Supreme Court. There are plenty of reasons to wonder how consistently they will coalesce in practice and how willing they will be to revisit wrong precedent. But trashing Antonin Scalia’s originalism and replacing it with Josh Hammer’s idiosyncratic, results-oriented version isn’t likely to help matters.
Common good originalism is the best constitutional complement to a politics of a conservative restoration. It is ordered toward a profoundly and distinctly conservative politics that elevates the concerns of nation, community, and family over the one-way push toward ever-greater economic, sexual, and cultural liberationism.
Virtue ethics can help originalism maintain its integrity.
As the late Justice Scalia was fond of pointing out, the views of individual lawmakers in the midst of debate are not themselves the law we must interpret. Neither are the votes taken in a deliberative body rightly viewed as votes on anyone’s interpretation of the text under discussion. The text that they passed, not what they said about what they passed, is the law.
Originalism is the commonsense, traditional American approach to constitutional interpretation, not a contemporary conservative invention.
Any defense of constitutional originalism depends on accepting the principles of natural law and natural rights on which the Constitution was founded. Unfortunately, these principles no longer have meaning for most judges, politicians, and ordinary citizens today—which has troubling implications for the future of our republic.
Originalism must guard against an overconfident reliance on history. Restraint and judicial caution are needed in an age of judicial overreaching.
In his latest book, law professor David A. Strauss attacks the idea of originalism and champions the “living Constitution.” Matt Franck explains why he’s wrong.
American self-government has not benefited from two generations of the Sullivan standard. 
In his day, Brownson advocated for a “long-term, multi-pronged rediscovery of the true Constitution,” an ordered liberty founded on a balance of unity in diversity based on natural law and the pursuit of the common good. He challenges us to “rediscover the true Constitution.” Now would be an appropriate time to follow his advice. 
The stubborn persistence of time immemorial in a time when it should, by rights, long ago have ceased to be in constitutional law, tells us something crucial about what binds a community to its law. We should listen. 
The true beauty of the American Founding is that it is rooted on the hope that “societies of men are really capable … of establishing good government from reflection and choice.” Throughout this book, it is evident that our author wonders at how the almost providential wisdom of the Constitutional Convention of 1787 achieved that—and such wonder is the very basis of political philosophy. It is only by recovering such a sensibility that Americans may make our Constitution efficacious once again. 
Taken as a whole, Rosen’s book offers a learned and sober account of the relevance of Hamilton’s and Jefferson’s principles to America’s past, present, and possible future. 
The conservative legal movement has come far, but we’re just getting started. 
Questions about how to interpret our Constitution, the reader can conclude, ought to be approached from within the broader enterprise of understanding how to inherit it. The inheritance-based understanding of American constitutionalism that Barrett transmits through this book is itself worthy of being handed on with interest and appreciation.  
President Trump plays extreme hardball by American standards, some of it blatantly authoritarian. Conservatives lose credibility when they deny this. But Trump’s election and reelection were, in part, a reaction to decades of undemocratic progressive change in the courts, bureaucracy, and public education—itself a kind of hardball. Liberals who deny or downplay these phenomena only feed populist anger.