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Originalism as Fable (Reviewing Eric Segall, Originalism as Faith).

2019
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Release : 2019
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Kind : eBook
Book Rating : /5 ( reviews)

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Book Synopsis Originalism as Fable (Reviewing Eric Segall, Originalism as Faith). by : D. A. Jeremy Telman

Download or read book Originalism as Fable (Reviewing Eric Segall, Originalism as Faith). written by D. A. Jeremy Telman. This book was released on 2019. Available in PDF, EPUB and Kindle. Book excerpt: Eric Segall's Originalism as Faith provides both a history of the originalist movement in constitutional interpretation and a critique of that movement from the perspective of legal realism. This Review Essay summarizes Segall's main argument: as originalism has abandoned deference to the political branches, it has become indistinguishable from its nemesis, living constitutionalism. Emptied of substance, originalism becomes nothing more than an expression of faith. Segall makes his argument very convincingly, evidencing both his knowledge of originalism in all its variants and his mastery of constitutional doctrine.This Essay offers two ways in which Segall's exemplary work might be supplemented. First, it teases out the various meanings that “faith” can have in this context, ranging from quasi-religious belief to myth to ideology to political credo. Second, it offers two alternative narratives as supplements to Segall's legal realist critique. Originalists insist that their approach has “bite,” which they contend distinguishes it from unprincipled living constitutionalism. In the alternative, Jack Balkin reconciles originalism and living constitutionalism. Legal decision-makers, following his “living originalism,” may be legal realists, but their construction of the Constitution must be constrained by their duties of good faith and fidelity to the Constitution.Originalism with bite and living originalism provide theoretical responses to Segall's challenges, but their positions must also accord with the reality of constitutional adjudication. Segall challenges originalists to reconcile their faith in unelected judges with a Constitution designed to provide governmental accountability through democratic processes. If they cannot do so, originalism is not a true account of our judicial processes but a fable designed to disguise a new version of legislation by the judiciary as the neutral application of legal rules.

Originalism as Faith

2018-10-18 Law
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Release : 2018-10-18
Genre : Law
Kind : eBook
Book Rating : 555/5 ( reviews)

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Book Synopsis Originalism as Faith by : Eric J. Segall

Download or read book Originalism as Faith written by Eric J. Segall. This book was released on 2018-10-18. Available in PDF, EPUB and Kindle. Book excerpt: Tracing the development of originalism, Eric J. Segall shows how judges often use the theory to reach politically desirable results.

Originalism's Promise

2019-08-08 History
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Release : 2019-08-08
Genre : History
Kind : eBook
Book Rating : 639/5 ( reviews)

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Book Synopsis Originalism's Promise by : Lee J. Strang

Download or read book Originalism's Promise written by Lee J. Strang. This book was released on 2019-08-08. Available in PDF, EPUB and Kindle. Book excerpt: Provides the first natural law justification for an originalist interpretation of the American Constitution.

The Bill of Rights

2015-05-05 History
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Release : 2015-05-05
Genre : History
Kind : eBook
Book Rating : 819/5 ( reviews)

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Book Synopsis The Bill of Rights by : Carol Berkin

Download or read book The Bill of Rights written by Carol Berkin. This book was released on 2015-05-05. Available in PDF, EPUB and Kindle. Book excerpt: “Narrative, celebratory history at its purest” (Publishers Weekly)—the real story of how the Bill of Rights came to be: a vivid account of political strategy, big egos, and the partisan interests that set the terms of the ongoing contest between the federal government and the states. Those who argue that the Bill of Rights reflects the founding fathers’ “original intent” are wrong. The Bill of Rights was actually a brilliant political act executed by James Madison to preserve the Constitution, the federal government, and the latter’s authority over the states. In the skilled hands of award-winning historian Carol Berkin, the story of the founders’ fight over the Bill of Rights comes alive in a drama full of partisanship, clashing egos, and cunning manipulation. In 1789, the nation faced a great divide around a question still unanswered today: should broad power and authority reside in the federal government or should it reside in state governments? The Bill of Rights, from protecting religious freedom to the people’s right to bear arms, was a political ploy first and a matter of principle second. The truth of how and why Madison came to devise this plan, the debates it caused in the Congress, and its ultimate success is more engrossing than any of the myths that shroud our national beginnings. The debate over the Bill of Rights still continues through many Supreme Court decisions. By pulling back the curtain on the short-sighted and self-interested intentions of the founding fathers, Berkin reveals the anxiety many felt that the new federal government might not survive—and shows that the true “original intent” of the Bill of Rights was simply to oppose the Antifederalists who hoped to diminish the government’s powers. This book is “a highly readable American history lesson that provides a deeper understanding of the Bill of Rights, the fears that generated it, and the miracle of the amendments” (Kirkus Reviews).

Supreme Myths

2012-02-22 Political Science
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Release : 2012-02-22
Genre : Political Science
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Book Synopsis Supreme Myths by : Eric J. Segall

Download or read book Supreme Myths written by Eric J. Segall. This book was released on 2012-02-22. Available in PDF, EPUB and Kindle. Book excerpt: This book explores some of the most glaring misunderstandings about the U.S. Supreme Court—and makes a strong case for why our Supreme Court Justices should not be entrusted with decisions that affect every American citizen. Supreme Myths: Why the Supreme Court is Not a Court and its Justices are Not Judges presents a detailed discussion of the Court's most important and controversial constitutional cases that demonstrates why it doesn't justify being labeled "a court of law." Eric Segall, professor of law at Georgia State University College of Law for two decades, explains why this third branch of the national government is an institution that makes important judgments about fundamental questions based on the Justices' ideological preferences, not the law. A complete understanding of the true nature of the Court's decision-making process is necessary, he argues, before an intelligent debate over who should serve on the Court—and how they should resolve cases—can be held. Addressing front-page areas of constitutional law such as health care, abortion, affirmative action, gun control, and freedom of religion, this book offers a frank description of how the Supreme Court truly operates, a critique of life tenure of its Justices, and a set of proposals aimed at making the Court function more transparently to further the goals of our representative democracy.

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