What is Originalism? The Evolution of Contemporary Originalist Theory

Debates over “originalism” have been a central focus of contemporary constitutional theory for three decades. One of the features of this debate has been disagreement about what “originalism” is. More worrisome is the possibility that the arguments between contemporary originalists and their opponents, the “living constitutionalists”, are confused–-with each side of the debate making erroneous assumptions about the content of their opponent’s theories. The aim of this chapter is to clarify these debates by providing a history of contemporary originalism and then developing an account of the core or focal content of originalist theory. The history reveals that contemporary originalist theory has evolved–-the mainstream of originalist theory began with an emphasis on the original intentions of the framers but has gradually moved to the view that the “original meaning” of the constitution is the “original public meaning” of the text. Even today, originalists disagree among themselves about a variety of important questions, including the normative justification for a constitutional practice that adheres to original meaning. Despite evolution and continued disagreement, however, contemporary originalist theory has a core of agreement on two propositions. First, almost all originalists agree that the linguistic meaning of each constitutional provision was fixed at the time that provision was adopted. Second, originalists agree that our constitutional practice both is (albeit imperfectly) and should be committed to the principle that the original meaning of the Constitution constrains judicial practice. The question whether living constitutionalists actually disagree with these core principles of originalist theory is a complex one. On one interpretation, living constitutionalism and originalism are (mostly) compatible: the constitution lives inside the “construction zone,” the boundaries of which are marked by the original meaning of the text. On another interpretation, living constitutionalism is incompatible with originalism: living constitutional doctrine and practices can override even original meaning of the text, even when that meaning is clear

Developmentalism: Learning as the Basis for Evaluating Information

The developmentalist conception of information’s value makes learning the central consideration for evaluating information. Following philosopher Richard Kraut, this article argues that developmentalism provides an important complement to prevalent methods of teaching the evaluation of information. These methods emphasize (a) trustworthiness—for example, CRAAP (currency, relevance, authority, accuracy, and purpose) and CARS (credibility, accuracy, reasonableness, and support) and (b) the use of information in an argument—for example, Joseph Bizup’s BEAM (background, exhibit, argument, method). The neglected link between evaluation and learning is crucial for early college researchers; otherwise, students can easily just find sources to “back up” their existing opinions. Learning-centered evaluation also challenges students to question how selective exposure influences their media habits. The article includes suggested applications for information literacy instruction in first-year composition

Jürgen Habermas and the Difficulties of Enlightenment

This is the publisher's version of the article published in Social Research (1982). The version made available in Digital Common was supplied by the author and is included with permission from the publisher, The New School. The journal's website is .Publisher's Versiontru

The battle of Detroit and anti-communism in the depression era

This article is an exploration of Diego Rivera's visit to Detroit in 1932-3. It seeks to use his experiences, and in particular the spectacular popular reaction to the Detroit Industry murals he pointed, as a prism for anaylsing varieties of anti-communism in. Detroit in the depression era. The article argues that close relationships between Private capitalists, most notably Hen?)) Ford and a Mexican communist, expose contradictions in big business's use of anti-communism in the interwar period, and suggest that anti-communism was a more complicated phenomenon than simply a tool for the promotion of free enterprise'. Moreover, by comparing the public reaction to the artists' work with their original intent, it is possible to see how members of Detroit's society unconsciously, used anti-communism to sublimate broader concerns over race and ethnicity gender, politics, and religiosity in a region in the throes of profound social change. The article seeks to highlight elements of these latent anxieties and fears in order to show how anti-communism acted as a vessel for social debate

Toryism reconstructed : the relationship between T.C. Haliburton's The Clockmaker and Canadian Imperialists

Utilisant « The Clockmaker » de Thomas Chandler Haliburton, cette étude examine comment la littérature informe notre compréhension du passé et les idées du présent. Ceci est une analyse des façons que le conservatisme de certains « Impérialistes canadiens » du XIXe siècle (Stephen Leacock, G.M. Grant, Andrew Macphail), des idéologues imaginant un rôle plus important pour le Canada au sein de l'Empire britannique, était influencé par celui présenté dans «The Clockmaker». Ce travail propose que l’ouvrage, problématique aujourd’hui, est tout de même important à analyser pour sa popularité et son influence dans le passé, ainsi que pour avoir contribué à faire revivre – grâce à sa rhétorique satirique, ses caricatures, et un style politisé – un conservatisme mourant que les Impérialistes ont ensuite adoptés. Cela a permis aux Impérialistes de développer une vision du Canada conforme à leur époque tout en s'appuyant sur un élément conservateur avec un fondement établi. « The Clockmaker » présente plusieurs idées similaires à celles des Impérialistes: une forte association britannique, de l’anti-américanisme, une plus grande influence du Dominion, etc. Conséquemment, il n'est guère surprenant que Grant lui-même ait noté l'influence de Haliburton sur la conception canadienne de l’impérialisme de lui et ses confrères. Étudiant les valeurs de Haliburton, leur expression dans « The Clockmaker », et comment les Impérialistes reflètent les idées et la rhétorique du roman, cette étude crée une continuité entre « The Clockmaker » et ces nationalistes qui ont cherchés une légitimité dans le passé en imaginant les traditions d'un jeune pays. L’étude examine la manière dont la littérature, au-delà d'être modélisée par son présent, devient l'histoire hautement-interprétable qui l’informe.Using Thomas Chandler Haliburton’s The Clockmaker, this work examines how literature informs understandings of the past and ideas of the present. This is an analysis of how the Toryism of certain late 19th-century Canadian Imperialists (Stephen Leacock, G.M. Grant, and Andrew Macphail) was influenced by The Clockmaker. These Imperialists were ideologues who imagined a greater role for Canada within the British Empire. The contention is that Haliburton’s work, although highly problematic today, is nonetheless important to analyze for the popularity and influence it had at other historical moments, and specifically for the ways it helped revive – through satirical rhetoric, caricatures, and politically-charged writing – a dying form of Toryism that the Imperialists adopted into their thought in multiple ways. This allowed the Canadian Imperialists to develop a vision of Canada in-line with the times while relying on an element of Tory culture that had a sound historical background. The Clockmaker expounds similar ideas to those of the Imperialists: strong British ties, anti-Americanism, an added socio-political weight to the Dominion, etc. It is hardly surprising, then, that Grant himself noted Haliburton’s influence on him and his fellow thinkers’ conceptual framing of imperialism in Canada. Studying Haliburton’s values, their expression in The Clockmaker, and the way the Imperialists’ works reflect the ideas and rhetorical tools of the novel, this study creates a continuity between The Clockmaker and those nationalists who sought legitimacy in the past when imagining the traditions of a fledgling country. This study examines how literature, beyond being modeled by its present, becomes the highly-interpretable history that informs said present

Judicial Conservatism v. A Principled Judicial Activism: Foreword to the Symposium on Law and Philosophy

In the wake of the Reagan administration\u27s numerous judicial appointments, it is the rare observer of the American legal scene who has not thought seriously about the proper role of the judge in enforcing the law. Editorialists, columnists, and academicians are all debating in one form or another the classic jurisprudential question: What is law? While such questions have never completely dropped from sight, we are now in a period of constructive intellectual turmoil much like those surrounding the Nuremburg trials and the civil rights movement. Such periods are usually characterized by, and perhaps caused by, a perception among an influential elite that there is a lot at stake. One of the most significant developments in the current debate has been a schism between conservative and classical liberal intellectuals on the issue of the proper role of the judiciary. Some of these intellectuals have hewed to a stance known as judicial conservatism. Others have urged a more activist judicial role, a view that I have previously called judicial pragmactivism and that has recently been referred to as a principled judicial activism. \u2

The Original Meaning of the Commerce Clause

The U& Supreme Court, in recent cases; has attempted to define limits on the Congress\u27s power to regulate commerce among the several states. While Justice Thomas has maintained that the original meaning of commerce was limited to the trade and exchange of goods and transportation for this purpose, some have argued that he is mistaken and that commerce originally included any gainful activity. Having examined every appearance of the word commerce in the records of the Constitutional Convention, the ratification debates and the Federalist Papers, Professor Barnett finds no surviving example of this term being used in this broader sense. In every appearance where the context suggests a specific usage, the narrow meaning is always employed. Moreover, originalist evidence of the meaning of among the several States and To regulate also supports a narrow reading of the Commerce Clause. Among the several States meant between persons of one state and another, and To regulate generally meant to make regular - that is, to specify how an activity may be transacted - when applied to domestic commerce, but when applied to foreign trade also included the power to make prohibitory regulation. In sum, according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods front one state to another, to remove obstructions to domestic trade erected by state; and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade

National Security Information Disclosures and the Role of Intent

In the public discourse, the perceived intent of those who disclose national security information without authorization plays an important role in whether they are labeled as heroes or traitors. Should it matter whether Chelsea (formerly Bradley) Manning leaked government information to WikiLeaks knowing that our enemies might benefit from the information? Is it relevant that Edward Snowden believed—or that a reasonable person would believe—that the topsecret government surveillance programs he revealed were illegal, or that the public value in knowing about these programs outweighed any risk of harm to national security? This Article examines whether intent—and what kind of intent— should matter in defining crimes related to the disclosure of national security information and concludes that it should, both as a matter of public policy and as a matter of constitutional law

The progress of society : an inquiry into an 'old-fashioned' thesis of Walter Bagehot

The nineteenth century saw the rise of Darwinism as a new paradigm for the study of nature and man mans an integral part thereof. Many scholars were intent on removing the abstract principles and universal truths of early modern philosophy in favour of understanding man's nature through more scientifically-based methods. Walter Bagehot (1826-1877) was one of the leading exponents of this view. Our focus is on one of Bagehot's famous books, Physics and Politics, or thoughts on the application of the principles of 'natural selection' and 'inheritance' to political society. Physics and Politics can be seen as one of the most remarkable attempts to think the intertwining of politics and Darwinism. In our paper, we want to examine Bagehot's efforts to apply natural sciences to politics and philosophy and his focus on progress and the idea that such progress is inherited over generations. We want to examine in what way a Darwinian framework of thinking is actually used in Physics and Politics. Our conclusion is that perhaps Physics and Politics established a framework for the application of biological principles to political society, but it definitely did not do so for the application of Darwin's principle of natural selection