The failed promise of originalism
By: Frank B. Cross
Publisher: Stanford Law Books, an imprint of Stanford University Press; Stanford University Press
Published: 2012
Place of publication: Stanford, California
Language: eng
Number of pages: 228
ISBN-13: 9780804783828; 9780804785075
Subjects: United States; Law; Constitutional law; United States. Supreme Court; Interpretation and construction
Description: "Originalism is an enormously popular--and equally criticized--theory of constitutional interpretation. As Elena Kagan stated at her confirmation hearing, "We are all originalists." Scores of articles have been written on whether the Court should use originalism, and some have examined how the Court employed originalism in particular cases, but no one has studied the overall practice of originalism. The primary point of this book is an examination of the degree to which originalism influences the Court's decisions. Frank B. Cross tests this by examining whether originalism appears to constrain the ideological preferences of the justices, which are a demonstrable predictor of their decisions. Ultimately, he finds that however theoretically appealing originalism may seem, the changed circumstances over time and lack of reliable evidence means that its use is indeterminate and meaningless. Originalism can be selectively deployed or manipulated to support and legitimize any decision desired by a justice." -- Publisher's website.
Notes: Includes bibliographical references and index.
Table of contents: title: The undeniable appeal of originalism; title: The meaning of originalism; title: The materials of originalism; title: Originalism before the Warren Court; title: Originalism since the Warren Court; title: Evaluating the Supreme Court's use of history; title: Justices of originalism; title: Ideology and Supreme Court decisions; title: The intersection of ideology and originalism.