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Book ChapterDOI

Originalism: The Lesser Evil

01 Jan 2017-pp 209-217
About: The article was published on 2017-01-01. It has received 49 citations till now. The article focuses on the topics: Originalism.
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DissertationDOI
06 Nov 2018

145 citations

Book
Ken I. Kersch1
28 Mar 2019
TL;DR: Kersch as discussed by the authors explores the developmental and integrative nature of postwar constitutional conservatism, challenging conservatives and liberals alike to more clearly see and understand both themselves and their presumed political and constitutional opposition.
Abstract: Since the 1980s, a ritualized opposition in legal thought between a conservative 'originalism' and a liberal 'living constitutionalism' has obscured the aggressively contested tradition committed to, and mobilization of arguments for, constitutional restoration and redemption within the broader postwar American conservative movement. Conservatives and the Constitution is the first history of the political and intellectual trajectory of this foundational tradition and mobilization. By looking at the deep stories told either by identity groups or about what conservatives took to be flashpoint topics in the postwar period, Ken I. Kersch seeks to capture the developmental and integrative nature of postwar constitutional conservatism, challenging conservatives and liberals alike to more clearly see and understand both themselves and their presumed political and constitutional opposition. Conservatives and the Constitution makes a unique contribution to our understanding of modern American conservatism, and to the constitutional thought that has, in critical ways, informed and defined it.

47 citations

Book
02 Mar 2017
TL;DR: Proportionality and Judicial Activism as discussed by the authors analyzes the fundamental rights jurisprudence of the Canadian Supreme Court, the German Federal Constitutional Court and the South African Constitutional Court.
Abstract: The principle of proportionality is currently one of the most discussed topics in the field of comparative constitutional law. Many critics claim that courts use the proportionality test as an instrument of judicial self-empowerment. Proportionality and Judicial Activism tests this hypothesis empirically; it systematically and comparatively analyses the fundamental rights jurisprudence of the Canadian Supreme Court, the German Federal Constitutional Court and the South African Constitutional Court. The book shows that the proportionality test does give judges a considerable amount of discretion. However, this analytical openness does not necessarily lead to judicial activism. Instead, judges are faced with significant institutional constraints, as a result of which all three examined courts refrain from using proportionality for purposes of judicial activism.

40 citations

Posted Content
TL;DR: In this article, the role of originalism in constitutional interpretation is discussed and a recent article in the Columbia Law Review by University of Chicago Law Professor Will Baude called "Inclusive Originalism" is discussed.
Abstract: This essay discusses the role (or lack thereof) originalism plays in constitutional interpretation and critiques a recent article in the Columbia Law Review by University of Chicago Law Professor Will Baude titled "Inclusive Originalism." The thesis of the essay is that Baude's "inclusive originalism" specifically and "New Originalism" more broadly, either inaccurately describe constitutional decision-making by mislabeling non-originalist decisions as originalist, or define originalism in a way that is indistinguishable from non-originalist methods. Either way, Professor Baude and other New Originalists vastly overstate the importance of original meaning to constitutional law. I suggest at the end of this piece that they do so largely to avoid the realist critique that values, not text or history, drive Supreme Court decisions.

31 citations

Dissertation
01 Oct 2018
TL;DR: In this article, a critical review and analysis of the authority initially conferred upon the European Court of Human Rights (ECtHR) by the first signatories and by the subsequent operation and evolution of the ECHR legal system is provided.
Abstract: The rulings of the European Court of Human Rights (ECtHR) under the European Convention on Human Rights (ECHR) are facing increasing criticism from some contracting states. At the heart of these concerns is the perception that the ECtHR is, in some cases, acting outside its legitimate mandate,by expanding its use of authority beyond the object and purpose of the agreement. While significant work has been published concerning the approach taken by the ECtHR in protecting rights, there is little that addresses the legitimacy of the existing judicial model in terms of the authority initially and subsequently conferred upon the Court by ECHR signatories. This work provides a critical review and analysis of the authority initially conferred upon the ECtHR by the first signatories and by the subsequent operation and evolution of the ECHR legal system. Findings from the review and analysis of the nature of the ECtHR’s authority are used as the basis for development of an analytical framework for the purpose of assessing the legitimacy of its procedures. The framework is designed to appraise the validity of the criticisms by states and to support the development of a proposed improved judicial model for decision-making. The analytical framework and the corrective model represent the major challenge and originality in the work and the major contribution to knowledge. Application of the analytical framework and the corrective model to relevant and controversial decisions of the ECtHR demonstrates their value and indicates that in some cases the criticisms made by states appear valid. This evaluation of the corrective model suggests that it is, at the least, of value in support of practical and academic analysis of ECtHR decisions, but also that it maybe a useful element in the development of improvements in the processes and operation of the Court, to enhance legitimacy, consistency and authority in its rulings. Discussion relating to the potential for wider development of the ECtHR’s processes,beyond the proposed corrective model, is provided under the heading of further work.

29 citations


Cites background from "Originalism: The Lesser Evil"

  • ...Antonin Scalia, “Originalism: The Lesser Evil” (1989) 57 University of Cincinnati Law Review 849, 854....

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