Constitutional Interpretation (Pb) / Edition 1

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Overview

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 nondogmatic 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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Editorial Reviews

Library Journal
Highly recommended for anyone interested in the foundations of American government and the judiciary.
Perspectives on Political Science
For those fascinated by the intricacies of contemporary legal theory, this book should prove nearly indispensable.
Review of Politics
Offers one of the best and most sophisticated arguments for originalism ever presented.
Library Journal
Constitutional theory and judicial interpretation are major ways to understand the U.S. Constitution and the U.S. Supreme Court's role in American society. Whittington (politics, Princeton) offers an innovative constitutional theory based upon originalism, a revised normative defense of original intent. As a means of constitutional interpretation, originalism limits government actions within the constitutional framework and extends constitutional meaning to current disputes. Supreme Court interpretation and construction of the Constitution are analytically distinguished as ways to achieve constitutional meaning. Whittington demonstrates how the Court's legal and political foundations led to its judicial review authority over other governmental branches. This carefully constructed study of how "constitutional interpretation can fit into a larger theory of constitutional practice and authority" is highly recommended for legal scholars, academics, and individuals interested in the foundations of American government and the judiciary.--Steven Puro, St. Louis Univ. Copyright 1999 Cahners Business Information.
Booknews
Finding constitutional scholarship to have degenerated into armed camps defending different theories of judicial review, Whittington (politics, Princeton U.) reconsiders the implications of the fundamental legal commitment to interpreting the US Constitution. He draws from American history, political philosophy, and literary theory to examine what it means to interpret a written constitution, and how the courts should go about the task. He argues that they should adhere to the discoverable intentions of the Founders. Annotation c. Book News, Inc., Portland, OR (booknews.com)
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Product Details

  • ISBN-13: 9780700611416
  • Publisher: University Press of Kansas
  • Publication date: 9/1/1999
  • Edition description: New Edition
  • Edition number: 1
  • Pages: 316
  • Product dimensions: 6.00 (w) x 9.00 (h) x 0.71 (d)

Table of Contents

Preface
1 Constitutional Interpretation 1
Originalism and Interpretation 2
Interpretation and Construction 5
Defining Interpretive Standards 14
2 The Dilemmas of Contemporary Constitutional Theory 17
Contemporary Constitutional Theory 18
The Nature and Purpose of Originalism 34
3 The Authority of Originalism and the Nature of the Written Constitution 47
Originalism and the Written Constitution 50
The Non-originalist Text 61
4 A Defense of Originalism and the Written Constitution 77
Accommodation, Politics, and Aspirations 77
Determinacy, History, and the Text 88
5 Popular Sovereignty and Originalism 110
The Idea of Sovereignty and the Active Sovereign 113
Rethinking Popular Sovereignty 127
Originalism and Its Relation to the People 152
6 The Nature and Limits of Originalist Jurisprudence 160
Of What Is and What Should Never Be 160
The Limits of Originalism and Interpretation 195
Conclusion: Interpretation and the Constitution as Law 213
Notes 221
Index 295
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