Results for 'originalism'

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  1. Semantic Originalism.Lawrence B. Solum - manuscript
    Semantic originalism is a theory of constitutional meaning that aims to disentangle the semantic, legal, and normative strands of debates in constitutional theory about the role of original meaning in constitutional interpretation and construction. This theory affirms four theses: (1) the fixation thesis, (2) the clause meaning thesis, (3) the contribution thesis, and (4) the fidelity thesis. -/- The fixation thesis claims that the semantic content of each constitutional provision is fixed at the time the provision is framed and (...)
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  2. Originalism about Word Types.Luca Gasparri - 2016 - Thought: A Journal of Philosophy 5 (2):126-133.
    According to Originalism, word types are non-eternal continuants which are individuated by their causal-historical lineage and have a unique possible time of origination. This view collides with the intuition that individual words can be added to the lexicon of a language at different times, and generates other problematic consequences. The paper shows that such undesired results can be accommodated without abandoning Originalism.
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  3. Why the Debate Between Originalists and Evolutionists Rests on a Semantic Mistake.John M. Collins - 2011 - Law and Philosophy 30 (6):645-684.
    I argue that the dispute between two leading theories of interpretation of legal texts, textual originalism and textual evolutionism, depends on the false presupposition that changes in the way a word is used necessarily require a change in the word’s meaning. Semantic externalism goes a long way towards reconciling these views by showing how a word’s semantic properties can be stable over time, even through vicissitudes of usage. I argue that temporal externalism can account for even more semantic stability, (...)
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  4. Grounding Originalism.William Baude & Stephen E. Sachs - 2019 - Northwestern University Law Review 113.
    How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system’s official story is that we follow the law of the Founding, plus all lawful changes made since. Or so we’ve argued. Yet this answer produces its own set of questions. How can practice solve our (...)
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  5. Why Originalism Needs Critical Theory: Democracy, Language, and Social Power.Annaleigh Curtis - 2015 - Harvard Journal of Law and Gender 38 (2):437-459.
    I argue here that the existence of hermeneutical injustice as a pervasive feature of our collective linguistic and conceptual resources undermines the originalist task at two levels: one procedural, one substantive. First, large portions of society were (and continue to be) systematically excluded from the process of meaning creation when the Constitution and its Amendments were adopted, so originalism relies on enforcement of a meaning that was generated through an undemocratic process. Second, the original meaning of some words in (...)
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  6. Surprising originalism: some critical reflections.Marina Gorali - 2019 - Dissertation, Facultad de Derecho Universidad de Buenos Aires
    First of all, I would like to thank to the Philosophy of Law Department for this encounter with Professor Solum. It is really a pleasure meeting you Professor, and having the possibility to discuss this profoundly interesting and courageaus text with my colegues and specially with its author. The adjetive I have just used is not simply politeness, I really think we are in front of a very interesting work not only because of its persuasive humorous rhetoric but mainly because (...)
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  7. Originalism and the Law of the Past.William Baude & Stephen E. Sachs - 2019 - Law and History Review 37:809-820.
    Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law — which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed. This theory has three important implications for the (...)
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  8. The Normativity of Linguistic Originalism: A Speech Act Analysis.John Danaher - 2015 - Law and Philosophy 34 (4):397-431.
    The debate over the merits of originalism has advanced considerably in recent years, both in terms of its intellectual sophistication and its practical significance. In the process, some prominent originalists—Lawrence Solum and Jeffrey Goldsworthy being the two discussed here—have been at pains to separate out the linguistic and normative components of the theory. For these authors, while it is true that judges and other legal decision-makers ought to be originalists, it is also true that the communicated content of the (...)
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  9. Common Knowledge, Pragmatic Enrichment and Thin Originalism.John Danaher - 2016 - Jurisprudence 7 (2):267-296.
    The meaning of an utterance is often enriched by the pragmatic context in which it is uttered. This is because in ordinary conversations we routinely and uncontroversially compress what we say, safe in the knowledge that those interpreting us will ‘add in’ the content we intend to communicate. Does the same thing hold true in the case of legal utterances like ‘This constitution protects the personal rights of the citizen’ or ‘the parliament shall have the power to lay and collect (...)
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  10. Gorsuch and Originalism: Some Lessons from Logic, Scripture, and Art.Harold Anthony Lloyd - manuscript
    Neil Gorsuch lauds judges who purport to “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be . . . .” It’s hard to see how such a form of Originalism withstands scrutiny. -/- First, using “reasonable reader” understandings rather than speaker meaning turns language and law on their heads. Audiences effectively (...)
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  11. Reconceptualizing American Democracy: The First Principles.Angelina Inesia-Forde - 2023 - Asian Journal of Basic Science and Research 5 (4):01-47.
    An outstanding group of leaders left evidence that a richer and more sustainable democracy could be achieved with American independence and democratic principles integrated into a new republican form of government. They were moved by principles that are the very spirit of democracy. These principles are needed to enhance democracy and improve well-being. Using the constructivist tradition of grounded theory and Aristotle’s conception of abstraction, the article proposes a theory of the first principles of democracy based on substantive data: the (...)
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  12. Justice Scalia and Queen Anne.Harold Anthony Lloyd - 2015 - Huffington Post.
    This article explores problems with several definitions of Originalism proposed by Justice Scalia in "Reading Law: The Interpretation of Legal Texts." It begins by looking at Justice Scalia's citation of a possible statement by Queen Anne that Justice Scalia claims in itself justifies Originalism. Queen Anne may have told Sir Christopher Wren that St. Paul's Cathedral was "awful, artificial, and amusing" at a time when those words meant "awe-inspiring, highly artistic, and thought-provoking." Conceding that one must understand how (...)
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  13. Relativism, Perspectivism, and the Universal Epistemic Language.Michael Lewin - forthcoming - Philosophy of the History of Philosophy.
    Recent research gives perspectivism the status of a stand-alone epistemological research program. As part of this development, it must be distinguished from other epistemologies, especially relativism. Not only do relativists and perspectivists use a similar vocabulary—even the supposed tenets (features of the doctrine) seem to partially overlap. To clarify the relation between these programs, I suggest drawing two important distinctions. The first is between the (1) terminological and (2) doctrinal components of epistemologies, the second between the (2a) analytical and (2b) (...)
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  14. What is Perspectivism? Что такое перспективизм?Michael Lewin - 2023 - Research Result. Social Studies and Humanities 9 (3):5-14.
    Since Nietzsche, the term “perspectivism” has been used as the name for an ill-defined epistemological position. Some have tried to find an adequate meaning for the word “perspectivism,” tacitly investing it with a set of different predicates, such as “the dependence of cognition on position,” “pluralism,” “anti-universalism,” “epistemic humility,” etc. This approach is related to two contestable attitudes: the monolateral linguistic paradigm and the metaepistemological position of multiplicity of incompatible epistemological programs. The monolateral linguistic paradigm proceeds from the assumption that (...)
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  15. Why the Late Justice Scalia Was Wrong: The Fallacies of Constitutional Textualism.Ken Levy - 2017 - Lewis and Clark Law Review 21 (1):45-96.
    My article concerns constitutional interpretation and substantive due process, issues that played a central role in Obergefell v. Hodges (2015), one of the two same-sex marriage cases. (The other same-sex marriage case was United States v. Windsor (2013).) -/- The late Justice Scalia consistently maintained that the Court “invented” substantive due process and continues to apply this legal “fiction” not because the Constitution supports it but simply because the justices like it. Two theories underlay his cynical conclusion. First is the (...)
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  16.  62
    Metaphysical Debates about Words: What Does It Mean to Be a Realist about Words?A. Nekhaev - 2023 - Tomsk State University Journal of Philosophy, Sociology, and Political Science 17 (75):64–75.
    In current discussions on the problem of the metaphysical nature of the word, four factions – eliminativism, nominalism, originalism, and the type-token theory – take an active part. For eliminativism, words as separate entities do not exist; they are only a useful cognitive illusion. In the process of communication, competent speakers make sounds and inscriptions through which they are able to infer certain intentional contents of each other’s cognitive states. However, these sounds and inscriptions cannot be regarded as instances (...)
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  17. How To Do Things With Signs: Semiotics in Legal Theory, Practice, and Education.Harold Anthony Lloyd - forthcoming - University of Richmond Law Review.
    Note: This draft was updated on November 10, 2020. Discussing federal statutes, Justice Scalia tells us that “[t]he stark reality is that the only thing that one can say for sure was agreed to by both houses and the president (on signing the bill) is the text of the statute. The rest is legal fiction." How should we take this claim? If we take "text" to mean the printed text, that text without more is just a series of marks. If (...)
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  18. “The Season of Exaggerated Hopes”: Richard T. Greener in the Reconstruction University.Kevin J. Harrelson - 2024 - Journal of the History of Philosophy 62 (3):449-474.
    abstract: Richard T. Greener was the first Black graduate of Harvard College in 1870, and he served briefly as a professor of philosophy at the University of South Carolina from 1873 to 1877. Historians and biographers have uncovered many of the facts of his unusual life, but to date his philosophy has remained unappreciated. This essay reconstructs his philosophy from published and archival sources, evaluating it in relationship to the work of his better-known mentor, Frederick Douglass. I argue that Greener’s (...)
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  19. A Uniform, Concretist Metaphysics for Linguistic Types.Giorgio Lando - 2019 - Metaphysica 20 (2):195-221.
    I argue that it is not acceptable to restrict the claim that linguistic types are concrete entities (type-concretism) to some categories of linguistic types (such as words or proper names), while at the same time conceding that other categories of linguistic types (such as sentence types) are abstract entities. Moreover, I suggest a way in which type-concretism can be extended to every linguistic type, thereby responding to the so-called productivity objection to type-concretism, according to which, whenever tokens of a type (...)
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  20. How Much Land Can Be Included in a National Monument?—Analyzing the “Smallest Area Compatible" Requirement in The Antiquities Act.Tenen Levi - 2023 - Environmental Law 53 (4):707-746.
    The Antiquities Act gives the president the power to designate “objects of historic or scientific interest” as “national monuments.” Presidents have used this power expansively, protecting massive tracts of federal land, often by claiming that very large things, such as the Grand Canyon or even entire landscapes, are “objects” in the requisite sense. There is legal debate over such uses of the Act, with critics arguing that they depart from the original intent and meaning of the legislation. What has been (...)
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  21. Virtuous Law-Breaking.G. Alex Sinha - 2021 - Washington University Jurisprudence Review 2 (13):199-252.
    A rapidly growing body of scholarship embraces virtue jurisprudence, a series of (often ad hoc) attempts to incorporate the philosophical tradition of virtue ethics into legal theory. Broadly understood, virtue ethics describes an approach to moral questions that emphasizes the importance of developing and embodying various virtues, often as manifestations of human flourishing. Scholars typically contrast virtue ethics with deontological and consequentialist moral theories, tracing virtue-centered analysis to ancient Greek philosophers, and in particular to Aristotle. Virtue ethics has experienced a (...)
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  22. A Theory that Beats the Theory? Lineages, the Growth of Signs, and Dynamic Legal Interpretation.Marcin Matczak - manuscript
    Legal philosophers distinguish between a static and a dynamic interpretation of law. The former assumes that the meaning of the words used in a legal text is set at the moment of its enactment and does not change with time. The latter allows the interpreters to update the meaning and apply a contemporary understanding to the text. The dispute between these competing theories has significant ramifications for social and political life. To take an example, depending on the approach, the term (...)
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  23. Speaker Meaning and the Interpretation and Construction of Executive Orders.Harold Anthony Lloyd - 2018 - Wake Forest Journal of Law and Policy 8 (2):319-361.
    This Article explores the interpretation and construction of executive orders using as examples President Trump’s two executive orders captioned “Protecting the Nation From Foreign Terrorist Entry Into the United States” (the “Two Executive Orders”). President Trump issued the Two Executive Orders in the context of (among other things) Candidate Trump’s statements such as: “Islam hates us,” and “[W]e can’t allow people coming into this country who have this hatred.” President Trump subsequently provided further context including his tweet about the second (...)
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  24.  73
    Orientation by Means of Original Word Forms and Meanings.Michael Lewin - 2024 - Essays on Orientation Skills in Everyday and Professional Life. Foundation for Philosophical Orientation.
    I argue for the 'strong view of etymology' and the value of education in regard to terminological and linguistic competence.
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  25. Crushing Animals and Crashing Funerals: The Semiotics of Free Expression.Harold Anthony Lloyd - 2012 - First Amendment Law Review 12.
    With insights from philosophy of language and semiotics, this article addresses judicial choices and semantic errors involved in United States v. Stevens, 130 S.Ct. 1577 (2010) (refusing to read “killing” and “wounding” to include cruelty and thus striking down a federal statute outlawing videos of animal cruelty), and Snyder v. Phelps, 131 S.Ct. 1207 (2011) (finding a First Amendment right to picket military funerals and verbally attack parents of dead soldiers as part of purportedly-public expression). -/- This article maintains that (...)
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  26. A Textualist Argument for a Living Constitution.A. J. Kreider - manuscript
    I think the basic intuition behind textualism correct – that the meaning of a law is fixed by referencing the meaning of its words according to the meaning common to the law’s ratifiers. However, even if true, it does not follow that interpretation of a law goes through the original ratifiers. Rather, a citizenry continually ratifies the laws to which it subjects itself, and as the meanings of those words change over time, so will those laws. Concerning, say, the U.S. (...)
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  27.  88
    Philosophie zwischen Begriffsanalyse, Begriffsbildung, ‚Begriffsdichtung‘ und ‚Begriffsengineering‘. Wie die ‚Wortanalyse‘ das Vagheitsproblem lösen kann.Michael Lewin - 2024 - In Klassische Deutsche Philosophie: Wege in die Zukunft. Brill | Mentis. pp. 65-89.
    Philosophers conceptualize a lot, generate, analyze, and engineer concepts. They often either equate ‘words’ and ‘concepts’ or consider words only as means of expression of their ‘concepts’. I suggest that philosophers should learn to distinguish between ‘words’ and ‘concepts’. Philosophers’ terms are often incompatible or partially incompatible with philosophers’ ‘concepts’. Examples are ‘isms’ in philosophy and the conception of reason. If ‘talking about the same matter’ is a prerequisite for fruitful philosophical debates, words and their analysis should have at least (...)
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  28. Reading Law with ChatGPT (With Special Emphasis on Contextual Canons).Varol Akman - 2024 - Law, Ethics, and Technology 2024 (3):06.
    We study the performance of ChatGPT interpreting prompts that require legal expertise to answer. Our inputs are very close adaptations from the "Contextual Canons" section of Antonin Scalia and Bryan Garner's Reading Law: The Interpretation of Legal Texts (Thomson West: 2012). We report our experiments and findings for the entire section (comprising 14 canons) of the book. We conclude that as a legal reasoner ChatGPT is exceptionally successful in taking the contextual canons into account.
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