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Constitutional OriginalismA Debate$
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Robert.W Bennett and Lawrence B. Solum

Print publication date: 2011

Print ISBN-13: 9780801447938

Published to Cornell Scholarship Online: August 2016

DOI: 10.7591/cornell/9780801447938.001.0001

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We Are All Originalists Now

We Are All Originalists Now

(p.1) We Are All Originalists Now
Constitutional Originalism

Lawrence B. Solum

Cornell University Press

This chapter advocates a form of constitutional originalism that accepts originalism's major claims while rejecting the label originalism. It first considers the debates about originalism pitting originalists against living constitutionalists. After discussing the arguments for and against various forms of originalism and living constitutionalism, the chapter examines the content of originalism as a constitutional theory, citing its four basic ideas which include the fixation thesis and the public meaning thesis. It then analyzes the linguistic meaning of the Constitution and whether it is binding on judges, the distinction between constitutional interpretation and constitutional construction, and the construction zone. It also addresses the question of justice within the context of the Constitution and concludes by arguing that we must use the word originalism carefully and clearly.

Keywords:   originalism, living constitutionalism, constitutional theory, fixation thesis, public meaning thesis, Constitution, constitutional interpretation, constitutional construction, construction zone, justice

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