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Have you ever wondered what it means to be an originalist? Ever been confused about the different forms of originalism? Wondered what the best justifications for this approach to interpreting the Constitution are?
In the last 40 years, Originalism has gone from an approach to interpreting the Constitution very much in the minority in the legal academy and in the Courts, to receiving widespread popular discussion. What is behind that shift? How has originalism itself changed over that time period? What are key debates among originalists today?
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This unit in the No. 86 video curriculum explores some key ideas that undergirded the writing of the Constitution: natural rights, separation of powers, mixed regime theory, federalism. These ideas came from varied sources: the British Constitutional experience, English and Scottish Enlightenment scholars, the French philosopher Montesquieu, and others. The Constitution is a complex document, one that was ratified only after intense debate. Originalism explores that complexity so that we can better understand the document. But do all Originalists agree on how and why to approach this study of the Constitution?
Originalism is a theory of Constitutional interpretation that places primacy on the meaning of the text of the Constitution - yet the question of determining how much can be understood from the Constitution is debated among Originalists. Some Originalists think that the text only provides a narrow or ambiguous meaning, leaving room for significant construction of meaning to fill in the gaps. Other Originalists argue that the text itself supplies more explicit meaning, leaving less room or need for construction. This unit in the No. 86 project explores different views in this debate about the "construction zone."
What is the proper role of a judge? Where did the power of judicial review come from? What things are judicially enforceable? This unit in the No. 86 curriculum project explores the intersection between judges and their duty to interpret the Constitution. Are judges able to use Originalism in their research and rulings or does it require academic expertise?
Is precedent always opposed to Originalism? Are there certain cases or issues when precedent is helpful or imperative? Are there so many non-Originalist precedents that Originalism is a moot point? This unit in the No. 86 curriculum explores the important question of the relationship of Originalism to preceding judicial decisions.