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Full-Text Articles in Law
Empiricism, Religion, And Judicial Decision-Making, Stephen M. Feldman
Empiricism, Religion, And Judicial Decision-Making, Stephen M. Feldman
Stephen M. Feldman
No abstract provided.
Supreme Court Alchemy: Turning Law And Politics Into Mayonnaise, Stephen Feldman
Supreme Court Alchemy: Turning Law And Politics Into Mayonnaise, Stephen Feldman
Stephen M. Feldman
How do law and politics intertwine in Supreme Court adjudication? Traditionally, in law schools and political science departments, scholars refused to mix law and politics. Law professors insisted that legal texts and doctrines controlled Supreme Court decision making, while political scientists maintained that political ideologies dictated the justices' votes. In the late twentieth century, some scholars in both disciplines sought to combine law and politics but still conceived of the two as distinct. They attempted to stir law and politics together, but ended with an oil-and-water type of mix; law and politics settled apart. The best approach, as presented in …
Constitutional Interpretation And History: New Originalism Or Eclecticism?, Stephen M. Feldman
Constitutional Interpretation And History: New Originalism Or Eclecticism?, Stephen M. Feldman
Stephen M. Feldman
The goal of originalism has always been purity. Originalists claim that heir methods cleanse constitutional interpretation of politics, discretion, and indeterminacy. The key to attaining purity is history. Originalist methods supposedly discern in history a fixed constitutional meaning. Many originalists now claim that the most advanced method -- the approach that reveals the purest constitutional meaning -- is reasonable-person originalism. These new originalists ask the following question: When the Constitution was adopted, how would a hypothetical reasonable person have understood the text? This Article examines historical evidence from the early decades of nationhood to achieve two goals. First, it demonstrates …
The Interpretation Of Constitutional History, Or Charles Beard Becomes A Fortuneteller (With An Emphasis On Free Expression), Stephen M. Feldman
The Interpretation Of Constitutional History, Or Charles Beard Becomes A Fortuneteller (With An Emphasis On Free Expression), Stephen M. Feldman
Stephen M. Feldman
In "An Economic Interpretation of the Constitution of the United States", Charles A. Beard argued that the framers advocated for and defended the Constitution because of their personal economic interest, that the pursuit of common good was not so much a motive as a veneer. The current historical consensus is that Beard's thrust is incorrect. In this essay, I largely agree with this assessment, but his economic approach can add an important element to the discussion of constitutional history. And though his economic depiction does not closely fit the framing of the Constitution, it uncannily fits the Roberts Court's current …