The Challenge of Originalism: Theories of Constitutional Interpretation

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Grant Huscroft, Bradley W. Miller
Cambridge University Press, Sep 12, 2011 - Law
Originalism is a force to be reckoned with in constitutional interpretation. At one time a monolithic theory of constitutional interpretation, contemporary originalism has developed into a sophisticated family of theories about how to interpret and reason with a constitution. Contemporary originalists harness the resources of linguistic, moral, and political philosophy to propose methodologies for the interpretation of constitutional texts and provide reasons for fidelity to those texts. The essays in this volume, which includes contributions from the flag bearers of several competing schools of constitutional interpretation, provides an introduction to the development of originalist thought, showcases the great range of contemporary originalist constitutional scholarship, and situates competing schools of thought in dialogue with each other. They also make new contributions to the methodological and normative disputes between originalists and non-originalists, and among originalists themselves.
 

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Contents

Theories of Constitutional Interpretation
1
part one Exposition and Defense
12
2 The Case for Originalism
42
3 On Pluralism within Originalism
70
part two Interpretation and Intention
87
5 The Intentionalist Thesis Once More
99
The Persons Case the Living Tree and the New Originalism
120
part three Originalism and Constitutional Settlement
147
8 The Curious Concept of the Living Tree or NonLockedIn Constitution
179
9 Vagueness Finiteness and the Limits of Interpretation and Construction
203
part four Challenges and Critiques
223
Lessons from John McCain and the NaturalBorn Citizenship Clause
246
12 Constitutions Originalism and Meaning
285
Index
301
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About the author (2011)

Grant Huscroft is a Professor of Law at the University of Western Ontario and is a member of Western Law's Public Law and Legal Philosophy research group. He was a member of the Faculty of Law at the University of Auckland, New Zealand from 1992 to 2002 and has been a visiting Professor at McGill University. He has written extensively about constitutional rights and judicial review and his work has been published in Canada, the United States, the UK, New Zealand and Australia. He is co-author of the treatise The New Zealand Bill of Rights (2003) and has edited or co-edited six collections of essays.

Bradley W. Miller is an Associate Professor in the Faculty of Law at the University of Western Ontario and is a member of Western Law's Public Law and Legal Philosophy research group. He is called to the bars of British Columbia and Ontario and has appeared before all levels of court in Ontario, including the Supreme Court of Canada. His research is focused on theories of constitutional interpretation and the place of moral reasoning in legal reasoning. His papers have been published in edited collections and in the American Journal of Jurisprudence, the Canadian Journal of Law and Jurisprudence, Public Law Review and Res Publica.

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