[DOWNLOAD] "Two (More) Problems with Originalism." by Harvard Journal of Law & Public Policy " eBook PDF Kindle ePub Free
eBook details
- Title: Two (More) Problems with Originalism.
- Author : Harvard Journal of Law & Public Policy
- Release Date : January 22, 2008
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 248 KB
Description
In this Essay, I wish to offer two simple points. The first is that originalist arguments misconstrue history, and the second is that there is no such thing as pragmatic originalism--to the contrary, originalism is by definition unpragmatic and at odds with legal pragmatism. To understand why being an originalist works only if one ignores or misstates history, we must look briefly at the history of originalism. Some notion of originalism, understood as the theory that the Framers' or Founders' thoughts regarding the Constitution are relevant to constitutional interpretation, has been part of the legal landscape for a very long time, appearing as early as the 1790s. (1) But originalist constitutional interpretation as a discipline--that is, as a distinct subject with a distinct methodology--actually came into being only in the late nineteenth century. (2) Legal treatises and other works on the Constitution written before that time did not contain originalist theories of interpretation. The treatises discuss particular interpretations and offer descriptions of the proper or best understanding of particular clauses, but it took some time before people began to think about the problem of interpretation more broadly and systematically. For most of the nineteenth and early twentieth centuries, even as the problem of interpretation emerged, the main controversy concerned how much deference courts should give to legislatures. (3) The debate was about who should interpret, not how to interpret. When it came to the question of how to interpret the Constitution, there was general agreement on a kind of conventional approach that mixed different arguments without much systemization--something very much like the mix of arguments lawyers use when interpreting statutes or common law. (4) The Framers' intent was one of these arguments, used alongside text, precedent, and policy, but not superior to them. (5)