Constitutional scholarship has deteriorated into a set of armed
camps, with defenders of different theories of judicial review too
often talking to their own supporters but not engaging their
opponents. This book breaks free of the stalemate and reinvigorates
the debate over how the judiciary should interpret the
Constitution.
Keith Whittington reconsiders the implications of the
fundamental legal commitment to faithfully interpret our written
Constitution. Making use of arguments drawn from American history,
political philosophy, and literary theory, he examines what it
means to interpret a written constitution and how the courts should
go about that task. He concludes that when interpreting the
Constitution, the judiciary should adhere to the discoverable
intentions of the Founders.
Other originalists have also asserted that their approach is
required by the Constitution but have neither defended that claim
nor effectively responded to critics of their assumptions or their
method. This book sympathetically examines the most sophisticated
critiques of originalism based on postmodern, hermeneutic, and
literary theory, as well as the most common legal arguments against
originalists. Whittington explores these criticisms, their
potential threat to originalism, and how originalist theory might
be reconstructed to address their concerns. In a non-dogmatic and
readily understandable way, he explains how originalist methods can
be reconciled with an appropriate understanding of legal
interpretation and why originalism has much to teach all
constitutional theorists. He also shows how originalism helps
realize the democratic promise of the Constitution without relying
on assumptions of judicial restraint.
This book carefully examines both the possibilities and the
limitations of constitutional interpretation and judicial review.
It shows us not only what the judiciary ought to do, but what the
limits of appropriate judicial review are and how judicial review
fits into a larger system of constitutional government. With its
detailed and wide-ranging explorations in history, philosophy, and
law, this book is essential reading for anyone interested in how
the Constitution ought to be interpreted and what it means to live
under a constitutional government.
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