01202009200348baiMHlibI6

- so we will now add that to reflect their wishes Living Constitutionalism —the fear that the constitution will become a dead text i.e is

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Historical practice originalism TEXT living constitutionalism policy & tradition preference & Democratic values *also, an arrow leading up from “TEXT” states formalism & an arrow leading down from “TEXT” states susbtantive outcome balancing *subcategories of originalism = understanding & intent Originalism —refers to some point in history -original intent what was in the minds of the author at the time -original understanding motivated by the assumption that the constitution is a democratic document *problems with this include: -how did the people at the time understand the document? -definition of “the people” has changed i.e. from white male landowners to today -perhaps the public lacked an overall opinion *this is the dominant originalist theory -drafting error theory the drafters failed to understand what the people wanted
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Unformatted text preview: so we will now add that to reflect their wishes Living Constitutionalism —the fear that the constitution will become a dead text, i.e. is “frozen in time” -evolution & growth -problem may allow the constitution to be interpreted loosely -positive aspect=as times change, threats change, so it’s easier to adapt -negative aspect=Constitution may lose its ability to be a limiting political influence Formalism —ask what the words mean and apply that rule Substantive Outcome Balancing —shape the rule to fit the case “common law reasoning approach” Conclusion 1. You can’t defend just one approach unless you answer the critical question: What is the purpose of the Constitution? 2. It does not work to choose on approach absolutely...
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This note was uploaded on 04/06/2009 for the course POLI SCI 412 taught by Professor Staff during the Spring '08 term at Wisconsin.

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