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The Hollow Core of Constitutional Theory

其他書名	Why We Need the Framers
出版	Cambridge University Press, 2021-04-08
主題	History / Americas (North, Central, South, West Indies)Law / GeneralLaw / ConstitutionalLaw / JurisprudencePolitical Science / Constitutions
ISBN	11084852869781108485289
URL	http://books.google.com.hk/books?id=bioNEAAAQBAJ&hl=&source=gbs_api
EBook	SAMPLE

註釋"For virtually all of Western legal history, when judges have considered the meaning of legal texts, their principal goal has been to identify the will of the lawmaker. There have always been arguments about whether those decisions should be based on the law's meaning as of the date of enactment or as updated in light of current conditions, but the core question for the process of interpretation has been how to apply the lawmaker's decision to the case at hand. Over the past 50 years, however, American constitutional theory has increasingly shifted its focus away from the lawmaker's intentions, not only by arguments for an aspirational, living, or consequentialist Constitution, but even, and perhaps surprisingly, through many contemporary originalists' focus on the search for semantic meaning rather than the Framers' particular policy choices. This book argues that constitutional theory needs to return to its historical core, which is an understanding of the decision made by the lawmaker in adopting the text. As a practical matter, determining that original choice will require an inquiry into the Framers' understandings despite the fact that most contemporary constitutional theorists - who often disagree with each other about virtually everything else - have been united in the belief that the Framers' understandings are unknowable and, in any event, irrelevant. Returning the Framers to the center of the interpretive process turns out to be an essential basis not only for decisions about the Constitution's original meaning, but also for determining how that meaning can be applied to twenty-first century circumstances"--