Problems of constitutional interpretation have many faces, but
much of the contemporary discussion has focused on what has come to
be called "originalism." The core of originalism is the belief that
fidelity to the original understanding of the Constitution should
constrain contemporary judges. As originalist thinking has evolved,
it has become clear that there is a family of originalist theories,
some emphasizing the intent of the framers, while others focus on
the original public meaning of the constitutional text. This idea
has enjoyed a modern resurgence, in good part in reaction to the
assumption of more sweeping power by the judiciary, operating in
the name of constitutional interpretation. Those arguing for a
"living Constitution" that keeps up with a changing world and
changing values have resisted originalism. This difference in legal
philosophy and jurisprudence has, since the 1970s, spilled over
into party politics and the partisan wrangling over court
appointments from appellate courts to the Supreme Court.
In Constitutional Originalism, Robert W. Bennett and Lawrence B.
Solum elucidate the two sides of this debate and mediate between
them in order to separate differences that are real from those that
are only apparent. In a thorough exploration of the range of
contemporary views on originalism, the authors articulate and
defend sharply contrasting positions. Solum brings learning from
the philosophy of language to his argument in favor of originalism,
and Bennett highlights interpretational problems in the
dispute-resolution context, describing instances in which a living
Constitution is a more feasible and productive position. The book
explores those contrasting positions, to be sure, but also uncovers
important points of agreement for the interpretational enterprise.
This provocative and absorbing book ends with a bibliographic essay
that points to landmark works in the field and helps lay readers
and students orient themselves within the literature of the
debate.
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