legal theorists have given great attention in recent years to how an originalist
judge should answer a question where the original public meaning of the text is underdetermined.
critics as leveling an ordinary originalist
Remarkably, in some of the most high-profile cases the court ever heard--namely, cases involving race-based affirmative action--Scalia never offered an originalist
defense of his views.
propositions, which this article calls Originalist
Principles 1-7, set
7) For many contemporary originalist
scholars, sometimes called "new originalists
", the aim of constitutional interpretation is not to discern the subjective intentions of the framers regarding the meaning of constitutional provisions ("original intentions"), (8) much less to divine how the framers would have applied constitutional rules and standards to present controversies ("original expected applications"), (9) but rather to determine the scope of constitutional rules based on the meaning constitutional language bore at the time of enactment ("original public meaning").
For example, if the original meaning of the Constitution's Gold Clauses prohibits the use of paper money, is an originalist
bound to plunge the economy into ruin?
Let's start with the originalist
After all, there was Scalia, the Court's foremost advocate of originalism, falling back on questionable precedents while refusing to consider the originalist
arguments that were properly presented before him in a major constitutional case.
, taunted by generations of non-originalist
critics, have tried to show that originalism can explain Brown v.
would find a parallel to banks that cooperate with the government to catch money-launderers, or phone companies that assist with wiretaps.
On the Originalist
account, co-referring names should be like true synonyms --they have the same content, but are different words.
After spending the first two-thirds of the review lauding the Paulsens for their originalist
approach, he wraps up by telling them to knock it off and adopt an approach that gets better results.
At first blush, Heller's originalist
methodology appears to embrace a largely unqualified right of every person to possess and carry any firearm in common civilian use.
They, at best, treated the originalist
approach as a vestige of a now long-gone era that had yielded to a newer, better world where effectively law, although it was never admitted so plainly as this, was merely a means to an end.
This article will argue that taking another look at originalist
interpretive principles is a critical step towards restoring section 28 as a fully functional constitutional provision and ensuring women have equal access to Charter rights.