Original Intent and the Framers Constitution

Author: Leonard W. Levy
Publisher: Ivan R. Dee
ISBN: 1461730287
Format: PDF, Docs
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For more than two hundred years a debate has raged between those who believe that jurists should follow the original intentions of the Founding Fathers and those who argue that the Constitution is a living document subject to interpretation by each succeeding generation. The controversy has flared anew in our own time as a facet of the battle between conservatives and liberals. In Original Intent and the Framers' Constitution, the distinguished constitutional scholar Leonard Levy cuts through the Gordian Knot of claim and counterclaim with an argument that is clear, logical, and compelling. Rejecting the views of both left and right, he evaluates the doctrine of "original intent" by examining the sources of constitutional law and landmark cases. Finally, he finds no evidence for grounding the law in original intent. Judicial activism—the constant reinterpretation of the Constitution—he sees as inevitable.

Original Intent and the Framers Constitution

Author: Leonard Williams Levy
Publisher: Ivan R Dee
ISBN:
Format: PDF, Kindle
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An examination of constitutional law and its landmark cases argues that the basis of constitutional jurisprudence lies in judicial activism, or continual reinterpretation of the Constitution, not in "original intent."

Negotiating the Constitution

Author: Joseph M. Lynch
Publisher: Cornell University Press
ISBN: 9780801472718
Format: PDF, ePub
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No concept sparks more controversy in constitutional debate than "original intent." Offering a legal historian's approach to the subject, this book demonstrates that the framers deliberately obscured one of their more important decisions. Joseph M. Lynch argues that the Constitution was a product of political struggles involving regional interests, economic concerns, and ideology. The framers, he maintains, settled on enigmatic wording of the Necessary and Proper Clause and of the General Welfare provision in the Spending Clause as a compromise, leaving the extent of federal power to be determined by the political process. During ratification, however, attempts by dissident framers to undo the compromise were repelled in The Federalist: charges of overly broad congressional powers were met with protestations that in fact these powers were limited. Lynch describes how early lawmakers applied the Constitution to such issues as executive power and privilege, the deportation of aliens, and the prohibition of seditious speech. He follows the disputes over the interpretation of this document—focusing on James Madison's changing views—as the new government took shape and political parties were formed. Lynch points out that the first six Congresses and President George Washington disregarded the framers' intentions when they were deemed impractical to follow. In contrast, he warns that the version of original intent put forth in recent Supreme Court opinions regarding congressional power could hinder Congress in serving the nation.

Original Intentions

Author: Melvin Eustace Bradford
Publisher:
ISBN: 9780820315218
Format: PDF
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This persuasively argued, decidedly partisan work aims to recover the original United States Constitution by describing its genesis, ratification, and mandate from the perspectives of its original framers. Openly challenging contemporary orthodoxy, M. E. Bradford employs principles of legal, historical, rhetorical, and dramatic analysis to reveal a Constitution notably short on abstract principles and modest in any goal beyond limiting the powers of the government it authorizes. From the beginning of Original Intentions, two sharply divergent convictions about the Constitution emerge. Bradford, arguing from a nomocratic viewpoint, regards the Constitution as an essentially procedural text created expressly to detail how the government may preside over itself not its people. He decries the currently predominant teleologic view, which is based upon the "principles" embodied by the Constitution, and holds that the document was designed to achieve a certain kind of society. By this view, he says, our fundamental laws have been blanketed by a heavy layer of ad hoc solutions to problems they were never intended to address, and then further obscured by the melioristic meddlings of judges, legislators, lawyers, scholars, and journalists. Bradford first shows that the Constitutional convention of 1787 was an enterprise guided by the delegates' hesitancy to impose a higher order over their local, practical, and vastly differing interests. Though all the states would ratify the Constitution, he says, each would interpret it in unique ways. Bradford underscores the dearth of lofty idealism among the original framers by detailing British influences on their political ethos. British common law, on which the framers heavily relied, evolved from a tradition of deliberate responses to practical needs and circumstances, not deductions from abstract utopian designs. In light of these factors, Bradford examines the ratification debates of Massachusetts, South Carolina, and North Carolina - three states that together exemplified the vast range of interests to be accommodated by the Constitution. Next Bradford highlights classic teleologic distortions. Discussing religion and the first amendment, he establishes a pervasive commitment to Christianity among the framers and challenges our notions about the separation of church and state. Warning against anachronistic readings of the Constitution, Bradford also analyzes the rhetoric of the framers to reinforce our awareness of their desire for a government that would contain their multiplicities, not seek to resolve them. In a reading of the Reconstruction amendments (thirteen, fourteen, and fifteen) Bradford argues that they had only a modest impact on the Constitution's original design. By the misconstruction of these amendments, however, the Constitution has been transformed into "a purpose oriented blank check for redesigning American society." In a final chapter Bradford critiques Mortimer Adler's We Hold These Truths and repudiates any broad connection between the Constitution and the Declaration of Independence. Before the Constitution is irreparably damaged, Bradford says, we must realize that it was not the best that the framers could invent but the best that their constituencies would approve. Debates related to normative issues should be settled not within the Constitution but within society, away from the coercive forces of law and politics - or else by amendment.

Original Meanings

Author: Jack N. Rakove
Publisher: Vintage
ISBN: 0307434516
Format: PDF, Docs
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From abortion to same-sex marriage, today's most urgent political debates will hinge on this two-part question: What did the United States Constitution originally mean and who now understands its meaning best? Rakove chronicles the Constitution from inception to ratification and, in doing so, traces its complex weave of ideology and interest, showing how this document has meant different things at different times to different groups of Americans. From the Trade Paperback edition.

Original Sin

Author: Samuel A. Marcosson
Publisher: NYU Press
ISBN: 0814756409
Format: PDF, ePub, Mobi
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Original Sin brings a rigorous review of the performance of the "new originalists" to the debate, applying their methodology to real cases. Marcosson focuses on the judicial decisions of Clarence Thomas, an avowed originalist who nevertheless advocates "color blind" readings of the Constitution which are at odds with the framers' ideas concerning anti-miscegenation and other laws.

Original Intent and the Constitution

Author: Gregory Bassham
Publisher: Rowman & Littlefield Publishers
ISBN:
Format: PDF, ePub
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'Writing with admirable lucidity and disposing a wide knowledge of technical questions in philosophy as well as of legal theory and constitutional history, Bassham competently distinguishes the quite distinct ideas that go, or could go, under the name of originalism.' -s CANADIAN PHILOSOPHICAL REVIEWS

Seasoned Judgments

Author: Leonard W. Levy
Publisher: Transaction Publishers
ISBN: 9781412833820
Format: PDF, Mobi
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Leonard Levy's new book, a compendium of his law review articles, book chapters, and basic shorter writings on themes with which he has long been identified, is a treasure chest of sound and reasonable analysis of American constitutional history. As one reviewer of the manuscript put matters: “There is not a clinker amongst them.” For anyone who thinks that liberal analysis has grown soft and flabby, a good dose of Levy's book should set the record straight. Seasoned Judgments is divided into three parts: Rights, Constitutional History, and The Marshall Court. In this progression from the general to the concrete, Levy never ignores the context as well as the content of the judicial process. Indeed, it is this linkage that separates him from nearly all other commentators and writers on the subjects covered. Whether discussing why the original Constitution lacked a Bill or Rights, or why the Fourth Amendment uses the imperative form “shall not” rather than the conditional form “ought not,” the reader enters a world of explanation rich in detail and carful scholarly elaboration. Well-known as editor in chief of the multivolumed Encyclopedia of the American Constitution, this new volume extracts some of Levy's own contributions to that effort. As a result, one can, for the first time, gain a clear sense of the author's own profound sense of the major issues confronting American law from the founding fathers to the present. The analysis of such still unresolved issues as flag desecration, the exclusionary rule, testimonial compulsion, taxation without representation, and the nature of the Constitution itself, will be of tremendous appeal to historians and political scientists as well as attorneys and judges.