Historicism, Originalism and the Constitution

Historicism, Originalism and the Constitution

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The use of history in law is a time honored tradition. Over the years the practice has assumed many forms, including historicism, intentionalism, interpretivist history, law office history, historical narrative, originalism, etc. This book picks up where past commentators have left off. The different historically based approaches to adjudicating constitutional questions are weighed and considered, particularly originalism, and asserts that history in law is legitimate only if it leads to accurate results. The book then purposes an approach to accomplish the objectives of historical accuracy and objectivity, and therefore legitimacy. qThe past too easily becomes a political football, a pawn in contemporary political debates about law and history. Charles is keenly aware of the abuse of history by lawyers, but also the abuse of law by historians. History's 'dead hand, ' Charles argues, should be invoked carefully and judiciously. To his credit, Charles's goal in this book is to improve the fraught dialogue between history and law.q--Robert J. Spitzer, SUNY Cortland, author of Saving the Constitution from Lawyers and The Politics of Gun Control qA rich and searching account of how the past should shape the present that sheds new light on many of our generation's most challenging constitutional problems.q--Gerard Magliocca, Samuel R. Rosen Professor of Law, Indiana University Robert H. McKinney School of Law qIn this thoughtful and ambitious book, Patrick Charles addresses some of the central questions in all of constitutional interpretation. Charles 'historical guideposts' approach simultaneously supports and challenges the positions of self-identified originalists and living constitutionalists alike. It represents a useful intervention in the ongoing debate between those camps.q--Joseph Blocher, Associate Professor of Law, Duke University.However, the majority of cases rely on a€œmeans-endsa€ scrutiny despite the fact that the historical test is meant to be flexible. ... a€œThe Blinding Light: The Uses ofHistory and Constitutional Interpretation, a€ 31 University ofChicago Law Review 502, 533 (1964). 97. ... Edward Shippen, a€œCharge Delivered at the Trial ofWilliam Cobbet, a€ undated, reprinted in Norwich Packet (Norwich, CT), January 2, 1800, at 4, col.

Title:Historicism, Originalism and the Constitution
Author:Patrick J. Charles
Publisher:McFarland - 2014-04-17


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