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Full-Text Articles in Jurisprudence
Why The Demands Of Formalism Will Prevent New Originalism From Furthering Conservative Political Goals, Daniel Hornal
Why The Demands Of Formalism Will Prevent New Originalism From Furthering Conservative Political Goals, Daniel Hornal
Daniel Hornal
Proponents of New Originalism propose that their modifications solve the indeterminacy and predictability problems inherent in early conceptions of originalism. This paper argues that excluding extrinsic evidence and relying only on the formal implications of the text merely switches one indeterminacy and predictability problem for another. Rules inherently carry implications unknown to rule writers. In the case of open-textured rules such as those in the Constitution, a broad reading can occupy whole fields of law, whereas a narrow reading can have almost no real-world effects. Because they must ignore extrinsic evidence, new originalists are almost unbound in their choice of …
I Am Textualism, Stephen Durden
I Am Textualism, Stephen Durden
Stephen Durden
This essay, consisting of merely 1100 words, satirizes textualism, particularly as applied to the Constitution. Inspired by the idea of something being all things to all people in order to win converts, the essay demonstrates that because textualism has so many different definitions that it in fact has no meaning other than the meaning given by each textualist. Each textualist embraces his or her own version of textualism. Textualists battle to define true textualism. Given the different versions of textualism, each textualist faces the Textualist Conundrum. As each textualist seeks to embraceor prove a purer form of textualism the textualist …
Textualist Canons: Cabining Rules Or Predilective Tools, Stephen Durden
Textualist Canons: Cabining Rules Or Predilective Tools, Stephen Durden
Stephen Durden
Justice Scalia proclaims homage to the “dead” Constitution. Justice Brennan honors the “living” Constitution. Others believe in “a partially living and partially dead Constitution.” But, whichever moniker selected, constitutional analysis remains (to the interpreter) personal; however, personal does not necessarily mean irrational or even singular (i.e., that no one else agrees with the interpretation). Rather, personal means that no matter how narrow the interpretational method, an interpreter of the Constitution inevitably makes personal choices when using any interpretational method - choices not required by, or perhaps even inconsistent with, the chosen interpretational method. This Article uses canons of construction to …
Partial Textualism, Stephen Durden
Partial Textualism, Stephen Durden
Stephen Durden
This Article seeks to demonstrate that plain meaning textualists do not apply plain meaning textualism to the entire Constitution. Instead, plain meaning textualists indulge their personal predilections and apply the doctrine of “partial textualism,” which selectively applies plain meaning textualism to only part of, rather than the entire, Constitution. Partial textualism destroys any possible fairness value to plain meaning textualism. Indeed, such an approach is entirely inconsistent with the goals of plain language textualism. Through examining the Takings Clause, this Article demonstrates that a plain meaning textualist will commonly apply plain meaning textualism to a part of the Constitution that …