Suchergebnisse

A review essay on books by (1) Alan Brinkley, Nelson W. Polsby, & Kathleen M. Sullivan, The New Federalist Papers: Essays in Defense of the Constitution (New York: W. W. Norton, 1997); & (2) Bruce Ackerman, We the People, Volume 2: Transformations (Cambridge: Harvard U Press, 1998). These two books examine the constitutionality of the New Deal. However, each takes a different viewpoint, with Ackerman arguing that the New Deal should be seen as a constitutional revolution & Brinkley et al describing New Deal policies as consistent with contemporary constitutionalism. Ackerman's ambitious project gives too much credence to the New Deal & its effects on constitutional revolution. Brinkley et al neglect to defend the Constitution, instead favoring a justification of the New Deal state. In addition, their claim to be the "New Federalists" is a bit presumptuous. Though each book largely fails to conclusively support its own constitutional approach, Ackerman's book is the more persuasive of the two, & each makes an important contribution to the enduring debate regarding the effects of the Constitution on the US political system. Adapted from the source document.

To many principled Originalists and proponent of religious liberty, the opinion in Employment Division v. Smith poses a puzzle. Many commentators believe Smith contradicts the original meaning of the Free Exercise Clause and hinders the right to religious freedom. Yet it was written by Justice Scalia, a self-professed Originalist and lion of the law. I attempt to resolve this puzzle, reviewing Justice Scalia's speeches and opinions on religious liberty. Ultimately, Justice Scalia's opinion in Smith reflects his commitments to certain jurisprudential principles. Viewing these principles in the light of New Originalism, though, it becomes clear how Smith most likely does not stand up to later refinements in Justice Scalia's own originalist thinking.

"Debates about constitutional originalism and its rival, living constitutionalism, are old. Originalists insist that the meaning of the United States Constitution is fixed. The words and phrases of the constitutional text have the same meaning today as they did when the Constitution was ratified by the requisite nine states in 1788 (or when each amendment was ratified). Living constitutionalists believe that the meaning of the Constitution must adapt to changes in values and circumstances. The two authors of the essays that follow clearly have different attitudes toward what is called originalism in constitutional interpretation. Lawrence Solum advocates a form of constitutional originalism; Robert Bennett's views align with a version of living constitutionalism. But the essays reveal that this contrast shrouds a host of complexities, both in the definitions of the concepts and in approaches to interpretation. Together the essays provide an introduction to the contemporary debates about the role of original understanding in constitutional interpretation"--Preface, p. [vii]