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Originalism | A Wisdom Archive on Originalism | | Originalism A selection of articles related to Originalism | |
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| ARTICLES RELATED TO Originalism | | | |  Originalism: Encyclopedia II - Originalism - Discussion
Originalism - Philosophical underpinnings.
Dissenting in Dred Scott v. Sanford [22], Justice Benjamin R. Curtis wrote:
"Whether such decrees are wise or unwise, whether their subjects are citizens or not, if they are usurpation of power, our rights are both infringed and endangered. They are infringed because the power to decide and act is taken away from the people without their consent. They are endangered because in a constitutional government, every usurpation of power dangerously disorders the ...
See also:Originalism, Originalism - Origins of the term, Originalism - Differentiated from strict constructionism, Originalism - Forms of originalism, Originalism - Original intent, Originalism - Problems with original intent, Originalism - Original meaning, Originalism - Methodology, Originalism - Discussion, Originalism - Philosophical underpinnings, Originalism - Function of Constitutional jurisprudence, Originalism - Matters rendered moot by originalism, Originalism - What originalism is not, Originalism - Pros and cons, Originalism - Arguments favoring originalism, Originalism - Arguments opposing originalism, Originalism - Footnotes Read more here: » Originalism: Encyclopedia II - Originalism - Discussion |
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| | | | Originalism: Encyclopedia II - Strict constructionism - Rationale The underlying argument behind strict constructionism is that if a legislature truly wants to enact a particular law, they are capable of writing it down in plain English and passing it, and it is not the job of the judiciary to reconstruct what the legislature's intent could have been. Thus, for example, Justice Scalia refuses to look at committee reports that often accompany bills to the House or Senate floor.
Supreme Court Justice Hugo Black wrote in Reid v. Covert, 354 U.S. 1, 5 -6 (1957), "[t]he United States is entirely a creature of the Constitu ...
See also:Strict constructionism, Strict constructionism - Rationale, Strict constructionism - Criticisms, Strict constructionism - Contrasts with originalism, Strict constructionism - Reference Read more here: » Strict constructionism: Encyclopedia II - Strict constructionism - Rationale |
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| | | | Originalism: Encyclopedia II - Legal formalism - Formalism explained Legal formalists argue that judges and other public officials should be constrained in their interpretation of legal texts by their plain meaning, suggesting that investing the judiciary with the power to say what the law should be, rather than confining them to expositing what the law does say, violates the separation of powers. This argument finds its most eloquent expression in the Massachusetts Constitution of 1780, which provides:
[T]he judicial shall never exercise the legislative and executive powers, or ...
See also:Legal formalism, Legal formalism - Formalism explained, Legal formalism - Formalism compared to Legal Realism, Legal formalism - Formalism critiqued by Critical Legal Theorists, Legal formalism - Justice Scalia & Formalism, Legal formalism - Footnotes and references Read more here: » Legal formalism: Encyclopedia II - Legal formalism - Formalism explained |
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| | | | Originalism: Encyclopedia II - Strict constructionism - Rationale The underlying argument behind strict constitutionalism is that if a legislature truly wants to enact a particular law, they are capable of writing it down in plain English and passing it, and it is not the job of the judiciary to reconstruct what the legislature's intent could have been. Thus, for example, Justice Scalia refuses to look at committee reports that often accompany bills to the House or Senate floor.
Supreme Court Justice Hugo Black wrote in Reid v. Covert, 354 U.S. 1, 5 -6 (1957), "[t]he United States is entirely a creature of the Constitu ...
See also:Strict constructionism, Strict constructionism - Rationale, Strict constructionism - Criticisms, Strict constructionism - Contrasts with originalism, Strict constructionism - Reference Read more here: » Strict constructionism: Encyclopedia II - Strict constructionism - Rationale |
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| | | | Originalism: Encyclopedia II - Original intent - Approach Original intent maintains that in interpreting a text, a court should determine what the authors of the text were trying to achieve, and to give effect to what they intended the statute to accomplish, the actual text of the legislation notwithstanding.
See, e.g., Beal, Cardinal Rules of Legal Interpretation p.121 ("in construing an Act of Parliament where the intention of the legislature is declared by the preamble, we are to give effect to that preamble"); Zander, Law-Making Process p.166 ("It is for the c ...
See also:Original intent, Original intent - Approach, Original intent - Problems, Original intent - Originalist criticisms of Original intent, Original intent - Notes Read more here: » Original intent: Encyclopedia II - Original intent - Approach |
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| | | | Originalism: Encyclopedia II - Legal formalism - Justice Scalia & Formalism Justice Antonin Scalia of the United States Supreme Court is noted for his formalist views about a variety of topics, particularly his view that the United States Constitution should be interpreted in accord with its original meaning and his view that statutes should be read in accord with their plain meaning.
In A Matter of Interpretation, Scalia defended textualism - and, by extension, formalism - saying:
Of all the criticisms leveled against textualism, the most mindless is that it is formalist. The answer to th ...
See also:Legal formalism, Legal formalism - Formalism explained, Legal formalism - Formalism compared to Legal Realism, Legal formalism - Formalism critiqued by Critical Legal Theorists, Legal formalism - Justice Scalia & Formalism, Legal formalism - Footnotes and references Read more here: » Legal formalism: Encyclopedia II - Legal formalism - Justice Scalia & Formalism |
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| | | | Originalism: Encyclopedia II - American conservatism - Types of conservatism Defining "American conservatism" requires a definition of conservatism in general, and the term is applied to a number of ideas and ideologies, some more closely related to core conservative beliefs than others.
1. Classical or institutional conservatism - Opposition to rapid change in governmental and societal institutions. This kind of conservatism is anti-ideological insofar as it emphasizes process (slow change) over product (any particular form of government). To the classical conservative, whether one arrives at a ...
See also:American conservatism, American conservatism - A brief history of American conservatism, American conservatism - Conservative thought in the Early United States, American conservatism - Early 20th Century American Conservative thought, American conservatism - Later 20th Century: Goldwater Buckley the Dixiecrats, American conservatism - Nixon Reagan and Bush, American conservatism - Types of conservatism, American conservatism - Conservatism as Ideology or political philosophy, American conservatism - Social conservatism and tradition, American conservatism - Fiscal conservatism, American conservatism - Economic liberalism, American conservatism - Conservatism in the United States electoral politics, American conservatism - Conservative geography Red States, American conservatism - Other topics, American conservatism - Conservatism and change, American conservatism - Conservatism and conservation, American conservatism - Contemporary conservative platform, American conservatism - Conservatism and Originalism, American conservatism - Conservative political movements, American conservatism - Criticisms, American conservatism - Stealth conservatives Read more here: » American conservatism: Encyclopedia II - American conservatism - Types of conservatism |
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| | | | Originalism: Encyclopedia II - Plain Meaning Rule - Meaning According to the plain meaning rule, words must be given their plain, ordinary and literal meaning. If the words are clear, they must be applied, even though the intention of the legislator may have been different or the result is harsh or undesirable.
Prof. Larry Solum's Legal Theory Lexicon expands on this premise:
Some laws are meant for all citizens (e.g., criminal statutes) and some are meant only for specialists (e.g., some sections of the tax code). A text that means one thing in a legal context, might mean somethi ...
See also:Plain Meaning Rule, Plain Meaning Rule - Meaning, Plain Meaning Rule - Soft Plain Meaning Rule, Plain Meaning Rule - Reasons favored, Plain Meaning Rule - Criticism, Plain Meaning Rule - British history, Plain Meaning Rule - United States history Read more here: » Plain Meaning Rule: Encyclopedia II - Plain Meaning Rule - Meaning |
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| | | | Originalism: Encyclopedia II - Stare decisis - Principle The principle of stare decisis can be divided into two components:
The first is the rule that a decision made by a higher court is binding precedent which a lower court cannot overturn.
The second is the principle that a court should not overturn its own precedents unless there is a strong reason to do so and should be guided by principles from lateral and lower courts. The second principle is an advisory one which courts can and do occasionally ignore.
Sta ...
See also:Stare decisis, Stare decisis - Principle, Stare decisis - Vertical stare decisis, Stare decisis - Horizontal stare decisis, Stare decisis - The last resort, Stare decisis - Evasion, Stare decisis - …and resistance, Stare decisis - Glitches, Stare decisis - Stare decisis in civil law systems, Stare decisis - Originalism and stare decisis, Stare decisis - Pros and cons Read more here: » Stare decisis: Encyclopedia II - Stare decisis - Principle |
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| | | | Originalism: Encyclopedia II - Constitution - Governmental constitutions Most commonly, the term constitution refers to a set of rules and principles that define the nature and extent of government. Most constitutions seek to regulate the relationship between institutions of the state, in a basic sense the relationship between the executive, legislature and the judiciary, but also the relationship of institutions within those branches. For example, executive branches can be divided into a head of government, government departments/ministries, executive agencies and a civil service/bureaucracy. Most constit ...
See also:Constitution, Constitution - Etymology, Constitution - General features, Constitution - Governmental constitutions, Constitution - Key features, Constitution - Constitutional courts, Constitution - History and development Read more here: » Constitution: Encyclopedia II - Constitution - Governmental constitutions |
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| | | | Originalism: Encyclopedia II - American conservatism - Types of conservatism Defining "American conservatism" requires a definition of conservatism in general, and the term is applied to a number of ideas and ideologies, some more closely related to core conservative beliefs than others.
1. Classical or institutional conservatism - Opposition to rapid change in governmental and societal institutions. This kind of conservatism is anti-ideological insofar as it emphasizes process (slow change) over product (any particular form of government). To the classical conservative, whether one arrives at a ...
See also:American conservatism, American conservatism - A brief history of American conservatism, American conservatism - Conservative thought in the Early United States, American conservatism - Early 20th Century American Conservative thought, American conservatism - Later 20th century: Goldwater Buckley the Dixiecrats, American conservatism - Nixon Reagan and Bush, American conservatism - Types of conservatism, American conservatism - Conservatism as Ideology or political philosophy, American conservatism - Social conservatism and tradition, American conservatism - Fiscal conservatism, American conservatism - Economic liberalism, American conservatism - Conservatism in the United States electoral politics, American conservatism - Conservative geography Red States, American conservatism - Other topics, American conservatism - Conservatism and change, American conservatism - Conservatism and conservation, American conservatism - Contemporary conservative platform, American conservatism - Conservatism and Originalism, American conservatism - Conservative political movements, American conservatism - Criticisms Read more here: » American conservatism: Encyclopedia II - American conservatism - Types of conservatism |
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| | | | Originalism: Encyclopedia II - American conservatism - Conservative political movements Contemporary political conservatism — the actual politics of people and parties professing to be conservative — in most western democratic countries is an amalgam of social and institutional conservatism, generally combined with fiscal conservatism, and usually containing elements of broader economic conservatism as well. As with liberalism, it is a pragmatic and protean politics, opportunistic ...
See also:American conservatism, American conservatism - A brief history of American conservatism, American conservatism - Conservative thought in the Early United States, American conservatism - Early 20th Century American Conservative thought, American conservatism - Later 20th century: Goldwater Buckley the Dixiecrats, American conservatism - Nixon Reagan and Bush, American conservatism - Types of conservatism, American conservatism - Conservatism as Ideology or political philosophy, American conservatism - Social conservatism and tradition, American conservatism - Fiscal conservatism, American conservatism - Economic liberalism, American conservatism - Conservatism in the United States electoral politics, American conservatism - Conservative geography Red States, American conservatism - Other topics, American conservatism - Conservatism and change, American conservatism - Conservatism and conservation, American conservatism - Contemporary conservative platform, American conservatism - Conservatism and Originalism, American conservatism - Conservative political movements, American conservatism - Criticisms Read more here: » American conservatism: Encyclopedia II - American conservatism - Conservative political movements |
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| | | | Originalism: Encyclopedia II - American conservatism - Conservatism in the United States electoral politics See also: Dixiecrats, Southern strategy, Solid South
In the United States, the Republican Party is generally considered to be the party of conservatism. This has been the case since the 1960s, when the conservative wing of that party consolidated its hold, causing it to shift permanently to the right of the Democratic Party; also, in varying degrees at various times over the second half of the twentieth century, numerous co ...
See also:American conservatism, American conservatism - A brief history of American conservatism, American conservatism - Conservative thought in the Early United States, American conservatism - Early 20th Century American Conservative thought, American conservatism - Later 20th century: Goldwater Buckley the Dixiecrats, American conservatism - Nixon Reagan and Bush, American conservatism - Types of conservatism, American conservatism - Conservatism as Ideology or political philosophy, American conservatism - Social conservatism and tradition, American conservatism - Fiscal conservatism, American conservatism - Economic liberalism, American conservatism - Conservatism in the United States electoral politics, American conservatism - Conservative geography Red States, American conservatism - Other topics, American conservatism - Conservatism and change, American conservatism - Conservatism and conservation, American conservatism - Contemporary conservative platform, American conservatism - Conservatism and Originalism, American conservatism - Conservative political movements, American conservatism - Criticisms Read more here: » American conservatism: Encyclopedia II - American conservatism - Conservatism in the United States electoral politics |
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| | | | Originalism: Encyclopedia II - American conservatism - Other topics
American conservatism - Conservatism and change.
"Conservatism" is not opposed to change. For example, the Reagan administration in the US and that of Margaret Thatcher in the UK both professed conservatism, but during Reagan's term of office, the United States radically revised its tax code, while Thatcher dismantled several previously nationalized industries and made major reforms in taxation and housing; furthermore, both took, or attempted, significant measures to reduce the power of labor unions. These changes were justified on the grounds that they ...
See also:American conservatism, American conservatism - A brief history of American conservatism, American conservatism - Conservative thought in the Early United States, American conservatism - Early 20th Century American Conservative thought, American conservatism - Later 20th century: Goldwater Buckley the Dixiecrats, American conservatism - Nixon Reagan and Bush, American conservatism - Types of conservatism, American conservatism - Conservatism as Ideology or political philosophy, American conservatism - Social conservatism and tradition, American conservatism - Fiscal conservatism, American conservatism - Economic liberalism, American conservatism - Conservatism in the United States electoral politics, American conservatism - Conservative geography Red States, American conservatism - Other topics, American conservatism - Conservatism and change, American conservatism - Conservatism and conservation, American conservatism - Contemporary conservative platform, American conservatism - Conservatism and Originalism, American conservatism - Conservative political movements, American conservatism - Criticisms Read more here: » American conservatism: Encyclopedia II - American conservatism - Other topics |
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| | | | Originalism: Encyclopedia II - American conservatism - Criticisms Criticism of American conservatism on ideological or philosophical grounds is different from personal criticism of politicians or thinkers who have conservative views. Opponents of conservatism accuse conservatives of
Putting individual gain above the good of the community or nation, as in the case of businessmen seeking weakened anti-trust laws, weakened environmental laws, and abolishment of or no increase in the minimum wage.
Indifference or hostility toward the freedom to choose religious and sexual views ...
See also:American conservatism, American conservatism - A brief history of American conservatism, American conservatism - Conservative thought in the Early United States, American conservatism - Early 20th Century American Conservative thought, American conservatism - Later 20th century: Goldwater Buckley the Dixiecrats, American conservatism - Nixon Reagan and Bush, American conservatism - Types of conservatism, American conservatism - Conservatism as Ideology or political philosophy, American conservatism - Social conservatism and tradition, American conservatism - Fiscal conservatism, American conservatism - Economic liberalism, American conservatism - Conservatism in the United States electoral politics, American conservatism - Conservative geography Red States, American conservatism - Other topics, American conservatism - Conservatism and change, American conservatism - Conservatism and conservation, American conservatism - Contemporary conservative platform, American conservatism - Conservatism and Originalism, American conservatism - Conservative political movements, American conservatism - Criticisms Read more here: » American conservatism: Encyclopedia II - American conservatism - Criticisms |
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