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From:Harvard Law Review (Vol. 135, Issue 3)Originalism is often promoted as a better way of getting constitutional answers. That claim leads to disappointment when the answers prove hard to find. To borrow a distinction from philosophy, originalism is better...
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From:Notre Dame Law Review (Vol. 89, Issue 5)ABSTRACT How does one defend a constitutional theory that's out of the mainstream? Critics of originalism, for example, have described it as a nefarious "Constitution in Exile, " a plot to impose abandoned rules on...
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From:University of Pennsylvania Law Review (Vol. 169, Issue 3)The Eleventh Amendment might be the most misunderstood amendment to the Constitution. Both its friends and enemies have treated the Amendment's written text, and the unwritten doctrines of state sovereign immunity, as...
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From:Constitutional Commentary (Vol. 33, Issue 3) Peer-ReviewedSETTLED VERSUS RIGHT: A THEORY OF PRECEDENT. By Randy J. Kozel. (1) Cambridge University Press. 2017. PP. x + 180. $99.99 (hardcover), $34.99 (paper). Americans disagree about the Constitution. Often they disagree...
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From:Law and Contemporary Problems (Vol. 75, Issue 3) Peer-ReviewedI INTRODUCTION Dean Erwin Chemerinsky says the Patient Protection and Affordable Care Act (ACA) (1) is "clearly constitutional"--that the case is "easy," and "not even ... close." (2) If you doubt that Congress...
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From:Harvard Journal of Law & Public Policy (Vol. 38, Issue 3) Peer-ReviewedINTRODUCTION Originalism is usually called a theory of interpretation, a particular way to read a text. Best understood, though, originalism is much more than that. It's a theory of our law: a particular way to...
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From:Harvard Journal of Law & Public Policy (Vol. 38, Issue 3) Peer-Reviewed2. Changes Since the Founding The Founders' rules weren't fixed in amber. We've altered them in innumerable ways, even on foundational matters. In our legal practices, though, one reliable way to defend those changes...
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From:Yale Law Journal (Vol. 127, Issue 1) Peer-ReviewedOriginalism is not about the text. Though the theory is often treated as a way to read the Constitution's words, that conventional view is misleading. A society can be recognizably originalist without any words to...
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From:Harvard Law Review (Vol. 130, Issue 4)How should we interpret legal instruments? How do we identify the law they create? Current approaches largely fall into two broad camps. The standard picture of interpretation is focused on language, using various...