- Bad originalism
Bad originalism refers to one or another kind of corruption of
Originalism , and may well be a form ofjudicial activism .Bad originalism can occur if:
*A legitimate originalist inquiry reaches flawed conclusions (e.g. evidence that would have been vital was unknown at the time)
*An originalist inquiry is manipulated to reach preferred results (e.g. evidence that would have been vital was available but was ignored)"However", note that Originalism is a theory of "interpretation", not of "construction". Two originalists can examine the same materials and come out on different sides of the case (see, e.g. "
Granholm v. Heald "; " [http://straylight.law.cornell.edu/supct/html/93-986.ZD.html McIntyre v. Ohio Elections Comm'n] "), without "either" of them having slipped into bad originalism. Even once theoriginal meaning (or, alternatively, theoriginal intent ) has been discerned, there remains the question of how broad or narrow a construction is placed upon that meaning. That having been said, while this is not per se bad originalism, it can become bad originalism once more if, having determined the original meaning / understanding / intent, a construction is placed upon that meaning which the text simply will not withstand.Advocates of the
compact theory maintain that the nationalist cohorts ofDaniel Webster malign historical fact concerning the intentions of the founding fathers to obfuscate the nature of the Constitution, to suit their dialectic which aggrandizes increasingly centralized power around the federal head.Verify source|date=June 2008The term "bad originalism" was probably coined by Prof.
Jack Balkin .ee also
*
Judicial activism
*Legal formalism
*Originalism
*Cf.Original intent
*Textualism External links
*Jack Balkin, [http://balkin.blogspot.com/2005/05/bad-originalism.html Bad originalism]
*Jack Balkin, [http://balkin.blogspot.com/2004/10/scalia-blowing-smoke-again.html Scalia blowing smoke]
*Ed BraytonWho|date=June 2008, [http://www.humanbeams.com/index.php/hbcolumnists/articles/p505brayton_originalism/ Balkin on "Bad Originalism" ]
*JustOneMinuteWho|date=June 2008, [http://justoneminute.typepad.com/main/2004/10/the_ny_times_fi.html The NY Times finds a codebreaker]
*Ed Whelan, [http://nationalreview.com/whelan/whelan200511010823.asp Boiling the Frog] (reviewing Cass Sunstein's "Radicals in Robes")
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