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Constitutional InterpretationThe Basic Questions$
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Sotirios A. Barber and James E. Fleming

Print publication date: 2007

Print ISBN-13: 9780195328578

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780195328578.001.0001

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Broad Originalism

Broad Originalism

(p.99) Chapter 7 Broad Originalism
Constitutional Interpretation

Sotirios A. Barber

James E. Fleming

Oxford University Press

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

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