The Challenge of Originalism : Theories of Constitutional Interpretation.

Cover; Title; Copyright; Contents; Preface; Contributors; The Challenge of Originalism: Theories of Constitutional Interpretation; I; II; III; IV; V; PART ONE. EXPOSITION AND DEFENSE; 1 What Is Originalism? The Evolution of Contemporary Originalist Theory; I. Introduction; II. A Word About the Word: The Origins of "Originalism"; III. A Very Short History of Contemporary Originalist Theory; A. Original Intentions of the Framers; B. The Misconceived Quest and the Original Understanding of Original Intentions; C. Original Understanding of the Ratifiers; D. We the People.

E. Original Public Meaning and the New OriginalismsF. Original Applications and Original Methods; G. New Critics of the New Originalism; H. District of Columbia v. Heller & McDonald v. City of Chicago; IV. What Is Originalism?; V. Originalism and Living Constitutionalism; VI. Conclusion; 2 The Case for Originalism; I. The Best Argument for Originalism; II. Elaboration, Qualification, and Defense; Proposition 1: A constitution, like any other law, necessarily has a meaning that pre-exists judicial interpretation of it.; Proposition 2: The meaning of a law is part (perhaps all) of what it is.

Therefore, to change the meaning of a law is to change the law. Proposition 3: The original meaning of a constitution is neither its original literal meaning (called "sentence meaning" by philosophers) nor its originally intended meaning ("speakers meaning"); it is, instead, its "utterance meaning," which is determined by a restricted range of evidence, extra-textual as well as textual, of what its founders intended it to mean.

Proposition 4: When a constitution itself requires that it be changed only by some special democratic procedure, this binds judges as well as other officials. The judges must not change the constitution- or, by inference from Proposition 2, its meaning- by purporting to "interpret" it. Proposition 5: Any judge who violated that requirement would flout the constitution itself, the rule of law, the principle of democracy, and (in many federal systems) the principle of federalism.

Proposition 6: When interpreting such a constitution, the judges' primary duty is to reveal and clarify its pre-existing meaning. When that meaning is insufficiently determinate to resolve the case at hand, their secondary duty is to act creatively and supplement it. To supplement the meaning of the constitution is not to change it.

Proposition 7: Although judges must not deliberately change the constitution, there are at least four ways in which constitutional law can and does legitimately evolve over time. To that considerable extent, originalism is perfectly consistent with "common law constitutionalism" and "living constitutionalism."

Provides an introduction to the development of originalist thought and showcases the great range of contemporary originalist constitutional scholarship.

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Includes bibliographical references and index.

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