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Constitutional Interpretation
The Basic Questions
Barber, Sotirios A. Professor of Political Science, University of Notre Dame
Fleming, James E. The Honorable Frank R. Kenison Distinguished Scholar in Law, Boston University School of Law
Print publication date: 2007 (this edition)
Published to Oxford Scholarship Online: January 2009
Print ISBN-13: 978-0-19-532857-8
doi:10.1093/acprof:oso/9780195328578.003.0007
Sotirios A. Barber
James E. Fleming
Broad originalists seek a middle way between narrow or concrete originalism and abstract originalism or the philosophic approach. They agree that concrete originalism is, for various theoretical and practical reasons, unworkable and indefensible. But they also feel that the philosophic approach is incapable of being faithful to the Constitution. Broad originalists believe the cure for Ronald Dworkin's abstract arguments for rights is greater respect for historical beliefs and practices and therefore a turn to history in constitutional interpretation. The chapter shows that a turn to history need not be and, understood correctly, cannot be a turn away from the responsibility of philosophic reflection and choice. The turn to history should be reconceived as in service of, not as alternative to, the philosophic approach.
Keywords: Ronald Dworkin, intermediate approach, level of abstraction, abstract originalism, concrete originalism, narrow originalism, originalist premise, philosophic approach, turn to history,
doi:10.1093/acprof:oso/9780195328578.003.0007
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PART I
PART II