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Constitutional Originalism: A Debate 1st Edition

4.5 out of 5 stars 4 customer reviews
ISBN-13: 978-0801447938
ISBN-10: 0801447933
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Editorial Reviews


"In their new book, Lawrence Solum and Robert Bennett build state-of-the-art cases for the two main schools of constitutional interpretation. Each contributes a generous essay presenting the merits of his own approach and offering a thoughtful rebuttal to the other's argument. If you’ve been seeking a concise introduction to the central debate in American constitutional theory, this is the book for you."―Gerald J. Russello, City Journal (Summer 2011)

"Solum and Bennett have produced a valuable book, particularly for students unfamiliar with the originalism versus 'living Constitution' debate and the literature it has spawned. . . . Rather than rehash their theoretical differences, the debaters thoughtfully weigh each other's arguments and acknowledge common ground, particularly regarding the limits of originalism in times of political or moral crisis and, more generally, the use of precedent in judicial interpretation. . . . This is an excellent resource; it includes an outstanding bibliography, and the authors discuss most of the true classics and key scholars in the field of constitutional interpretation. Summing up: Highly recommended." ―Choice (February 2012)

"In a highly readable discussion, these two eminent legal scholars bring sophistication and nuanced insights to a perennially controversial topic." ―Paul Brest, Dean Emeritus, Stanford Law School

"Constitutional Originalism is unique among books about its subject in adopting the debate format. It is refreshing to see a discussion of the connections between originalism and living constitutionalism developed by two authors who approach these issues from different perspectives but also find some common ground."―Keith E. Whittington, William Nelson Cromwell Professor of Politics, Princeton University, author of Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review

"Constitutional Originalism is a must-read for anyone interested in arguments over how to understand the Constitution. In a highly sophisticated yet immensely readable point-counterpoint, Robert W. Bennett and Lawrence B. Solum offer powerful arguments for and against interpreting the Constitution on the basis of its original meaning. Wherever one stands on the question, this book provides challenging new insights from the opposing view. The debate over the merits of originalism is gaining new prominence in American law and politics, and no one on either side of it can afford to ignore this contribution."―Michael D. Ramsey, University of San Diego School of Law

"Anyone interested in how the Constitution should be interpreted must read this fascinating debate between Lawrence B. Solum, a leading theorist of originalism, and Robert W. Bennett, one of originalism's most fervent critics. As in a courtroom, after each clearly and respectfully presents his case, the reader gets to be the jury."―Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, author of Restoring the Lost Constitution: The Presumption of Liberty


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Product Details

  • Hardcover: 224 pages
  • Publisher: Cornell University Press; 1 edition (May 13, 2011)
  • Language: English
  • ISBN-10: 0801447933
  • ISBN-13: 978-0801447938
  • Product Dimensions: 6.3 x 0.8 x 9.4 inches
  • Shipping Weight: 1 pounds (View shipping rates and policies)
  • Average Customer Review: 4.5 out of 5 stars  See all reviews (4 customer reviews)
  • Amazon Best Sellers Rank: #1,181,971 in Books (See Top 100 in Books)

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Format: Kindle Edition Verified Purchase
This is the first book about constitutional law (or legal studies, period) that I ever read, and it proved to be an excellent introduction to the topic. The arguments are clear (Solum's more so than Bennett's) and accessible to someone with interest but no prior knowledge on the subject; it also offers a lot of material, in the form of references to landmark cases, for follow up. For anyone concerned about how the Supreme Court works, this is a valuable introduction to the underlying issues of how the Constitution may be interpreted, and to what ends.
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Format: Hardcover
After the Supreme Court decision on Obamacare there was a good deal of controversy over Justice Scalia's position versus what Chief Justice Roberts chose to do. If you had read Originalism: lessons from things that go without saying, you would know more than the commentators who chose to characterize the differences as personal or shrewd politics. Justice Scalia is the leading advocate of the theory known as originalism. The idea is that you want to create a framework for deciding cases based on your expectation as to what the framers of the Constitution, primarily, James Madison, would do if they were alive and on the court. Of course, this is difficult as we imagine Madison writing the body of the Constitution with a quill pen by candlelight while insulated from drudgery by the 600 slaves that he owned. Another point of view is to regard the Constitution as a living document which means that court decisions in matters such as socialized medicine, the internet, atomic energy, electricity, cars, and airplanes set precedents which become a part of the Constitutional tradition. It's interesting that neither author really wants to pursue the idea that it's time to write a new Constitution so that the court doesn't have to do intellectual back flips in so many cases. The book makes complex ideas understandable and would be excellent as a social studies text for high school seniors or college students. The authors manage to write for laypeople without pandering or watering down the concepts involved. I recommend the book as we head into the last 90 days of the presidential campaign and afterward.
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Format: Kindle Edition Verified Purchase
This is an excellent book. The Kindle version, however, FALSELY ADVERTISES that it has real page numbers. As of this writing, it does not.
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Format: Hardcover
This is a very useful book for anyone who wants to understand the longstanding debate between constitutional originalists (those who say that judges should look to the original meaning or intent of the Constitution) and living constitutionalists (those who claim that judges can sometimes depart from original meaning to adapt the Constitution to changing times). Solum (the originalist) and Bennett (the nonoriginalist) both do a fine job defending their views. Readers should be aware, however, that Solum is far from your typical originalist; most conservatives would view his brand of originalism as a Trojan horse. True, he favors adherence to original meaning. But he claims that most heavily adjudicated constitutional provisions have no clear and specific meaning. Their meaning is so vague or abstract that judges, in order to translate that meaning into reasonably determinate legal rules and doctrine, often have no choice but to consult their own values. This means that, in practice, originalist judges of Solum's ilk may not differ much from living constitutionalists. There is no voice in this book for mainstream conservative originalism.

Solum relies heavily on a distinction between constitutional "interpretation" and constitutional "construction" (an old distinction recently revived by Keith Whittington). Interpretation involving ascertaining linguistic meaning; construction involves translating vague or abstract linguistic meaning into legally operational applications, rules, and doctrines.

There is certainly an important difference between these two activities, and we need some labels to refer to them. It is a mistake, though, to use these terms as narrowly as Solum does. Interpretation involves much more than ascertaining (or attempting to ascertain?) linguistic meaning.
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