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Cosmic Constitutional TheoryWhy Americans Are Losing Their Inalienable Right to Self-Governance$
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J. Harvie Wilkinson

Print publication date: 2012

Print ISBN-13: 9780199846016

Published to Oxford Scholarship Online: April 2015

DOI: 10.1093/acprof:osobl/9780199846016.001.0001

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Originalism

Originalism

Activism Masquerading as Restraint

Chapter:
(p.33) Chapter Two Originalism
Source:
Cosmic Constitutional Theory
Author(s):

J. Harvie Wilkinson

Publisher:
Oxford University Press
DOI:10.1093/acprof:osobl/9780199846016.003.0003

This chapter analyzes Judge Robert Bork's theory of originalism. It argues that originalism, despite its importance in constitutional adjudication, suffers from that all-too-common infirmity of cosmic constitutional theory: a lack of judicial restraint. In the case of originalism, this failing assumes almost a tragic dimension, because more than any other theory, it tried so earnestly and so hard to be an exemplar of the modest virtues.

Keywords:   originalism, Robert Bork, cosmic constitutional theory, American constitutional law, constitutional adjudication

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