Suchergebnisse

Intro -- Contents -- Preface -- Introduction -- 1 From Textual Originalism to Modern Judicial Power -- 2 Modern Judicial Power and the Process-Restraint Tradition -- 3 The Return of Originalist Analysis in the Warren Court Era -- 4 At the Crossroads: The Originalist Idea in Post-Warren Court Politics and Jurisprudence -- 5 Raoul Berger and the Restoration of Originalism -- 6 Originalism in the Era of Ronald Reagan -- 7 Robert Bork and the Trial of Originalism -- 8 Originalism in the 1990s: The Transformation of Academic Theory and the Limitations of Practice -- Notes -- Index -- A -- B -- C -- D -- E -- F -- G -- H -- I -- J -- K -- L -- M -- N -- O -- P -- R -- S -- T -- U -- V -- W -- Y.

O'Neill reviews The American Constitution and the Debate over Originalism by Dennis J. Goldford.

Today constitutional theory is marked by the staying power of originalism, interest in nonjudicial constitutional interpretation, and reconsideration of when judicial review is "countermajoritarian." Alexander M. Bickel and Robert H. Bork shaped these concerns in the 1960s and early 1970s while they were close friends and Yale faculty colleagues. Both recognized that the Warren Court's liberal activism, when considered in the aftermath of legal realism, demanded a clearer theory of the limits of legitimate judicial power. This article examines their legal and constitutional thought in this period and then briefly surveys how their ideas continue to configure constitutional theory. Current defenders and opponents of originalism are still compelled to wrestle with the imprint of positivism, formalism, and judicial restraint Bork gave the doctrine. Current challenges to the "countermajoritarian difficulty" in favor of nonjudicial interpretation must contend with this influential formulation of Bickel, and they owe more to the Bickel of constitutional "colloquy" than has been appreciated.