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The Incredible Shrinking Constitutional Theory: From The Partial Constitution To The Minimal Constitution, James E. Fleming
The Incredible Shrinking Constitutional Theory: From The Partial Constitution To The Minimal Constitution, James E. Fleming
Faculty Scholarship
Cass Sunstein and I have written fundamentally different books. My Securing Constitutional Democracy: The Case of Autonomy' puts forward a liberal Constitution-perfecting theory, one that aspires to interpret the American Constitution so as to make it the best it can be. Sunstein's Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America2 advances a minimalist critique of radical conservative constitutional theories of "fundamentalism" that call for restoring the "Constitution in exile."
The Balkanization Of Originalism, James E. Fleming
The Balkanization Of Originalism, James E. Fleming
Faculty Scholarship
Are we all originalists now? If anything would prompt that question, it would be Ronald Dworkin and Jack Balkin dressing up their theories in the garb of originalism (or, at any rate, being interpreted as originalists). For they are exemplars of two bete noires of originalism as conventionally understood: namely, the moral reading of the Constitution, and pragmatic, living constitutionalism, respectively.' Yet in recent years Dworkin has been interpreted as an abstract originalist2 and Balkin has now embraced the method of text and principle, which he presents as a form of abstract originalism.'