Originalism and the good constitution / / John O. McGinnis, Michael B. Rappaport

• Record Nr.: UNINA9910790603803321
• Autore: McGinnis John O. <1957->
• Pubbl/distr/stampa: Cambridge, Massachusetts : , : Harvard University Press, , 2013
• ISBN: 0-674-72736-3; 0-674-72626-X
• Descrizione fisica: 1 online resource (312 p.)
• Altri autori (Persone): RappaportMichael B. <1960->
• Disciplina: 342.73/0011
• Soggetti: Constitutional law - United States; Constitutional law - Philosophy; Origin (Philosophy); Judicial review - United States
• Lingua di pubblicazione: Inglese
• Formato: Materiale a stampa
• Livello bibliografico: Monografia
• Note generali: Description based upon print version of record.
• Nota di bibliografia: Includes bibliographical references and index.
• Nota di contenuto: Originalism : Its Discontents and the Supermajoritarian Solution -- The Nature of the Argument -- The Supermajoritarian Theory of Constitutionalism -- The Compliance of the US Constitution with Desirable Supermajority Rules -- The Continuing Desirability of an Old Supermajoritarian Constitution -- Supermajoritarian Failure, Including the Exclusion of African Americans and Women -- Original Methods Originalism -- Original Methods versus Constitutional Construction -- Precedent, Originalism, and the Constitution -- The Normative Theory of Precedent -- Imagining an Originalist Future.
• Sommario/riassunto: Originalism holds that the U.S. Constitution should be interpreted according to its meaning at the time it was enacted. In their innovative defense of originalism, John McGinnis and Michael Rappaport maintain that the text of the Constitution should be adhered to by the Supreme Court because it was enacted by supermajorities--both its original enactment under Article VII and subsequent Amendments under Article V. A text approved by supermajorities has special value in a democracy because it has unusually wide support and thus tends to maximize the welfare of the greatest number. The authors recognize and respond to many possible objections. Does originalism perpetuate the dead hand ; of the past? How can originalism be justified, given the exclusion of African Americans and women from the Constitution and many of its subsequent Amendments? What is originalism's place in interpretation, after two hundred years of non-originalist precedent? A fascinating counterfactual they pose is this: had the Supreme Court not interpreted the Constitution so freely, perhaps the nation would have resorted to the Article V amendment process more often and with greater effect. Their book will be an important contribution to the literature on originalism, now the most prominent theory of constitutional interpretation.