Tagged: originalism

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The Text Is All We Have

Today’s story about the Justice Department obtaining two months’ worth of telephone records from the Associated Press, apparently without a warrant and without any sort of prior notice to the people or entity thus...

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How do you interpret a constitution?

The biggest cause of confusion faced by Originalists—the folks who think the Constitution means what it originally did in the late 1700s—isn’t the one you’d probably guess at first.  You’d probably guess it has to do with how we can know what 18th century Americans were thinking.  And how can anyone know what Americans more than two and a quarter centuries ago thought “due process” was, or what a “reasonable search and seizure” was?  We can hardly get consensus on […]

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How do you interpret a constitution?

The biggest cause of confusion faced by Originalists—the folks who think the Constitution means what it originally did in the late 1700s—isn’t the one you’d probably guess at first.  You’d probably guess it has...

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The judge as moral philosopher

Reviewing Supreme Court Justice Antonin Scalia and Bryan A. Garner’s Reading Law: The Interpretation of Legal Texts in the Claremont Review of Books, David Forte exposes Justice Scalia’s famous legal positivism as moral philosophy by another name.  “They call false,” Forte writes of Scalia and Garner, “the ‘notion that the quest in statutory interpretation is to do justice,’” and they, like Alexander Hamilton, prefer judges to be “‘bound down by strict rules and precedents.”  But judging, Forte pushes back, is […]

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Please, For The Love Of God, Stop

Here at The League, we promote the sort of reasonable discourse that forces us to give our ideological opponents a fair hearing. This rigor demands our consideration, lest we unfairly dismiss the legitimate claims...

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Our Unlovable Constitution

A new study by David S. Law and Mila Versteeg concludes that the world’s democracies are no longer emulating the U.S. Constitution, and are instead resorting to other templates that guarantee more “generic building...

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The Constitutional Conservatism Newspeak

“Liberals are the true conservatives of this generation,” a growingly popular line of argument goes, “because liberals are the guardians of the new American tradition—the New Deal tradition—against the reactionary onslaught of the fake,...

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Why Originalism?

In our discussion of constitutional originalism below, I’ve been asked a very good question — Why should we choose originalism rather than any other interpretive strategy? Even if we grant that we need a...

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The Short, Happy Life of Ad Hoc Reasoning

This morning I was surprised to find Tim Kowal — one of my few followers on Twitter — defending the constitutionality of laws that discriminate against Boy Scouts, organ donors, Israeli-Americans, and anyone who...

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When Should Judges Defer?

Note – Will and I exchanged a few emails on judicial activism, cultural change, and the courts’ public legitimacy in the wake of the Iowa gay marriage ruling. We’ve published an edited version below:...

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Whaddaya Mean, “Activist”?

 I wanted to give a lawyer’s perspective to the discussion of judicial activism the decision has spawned between William, John, and E.D., arising in part due to Mr. Sullum and Mr. Whelan.  To be sure,...

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