A Post-Originalist Theory of Legal Interpretation
This chapter begins by articulating the principles underlying the two key dimensions of a new, deferentialist, theory of legal interpretation—the identification of original asserted or stipulated content, and the nature of the deference required when new circumstances demand that judges make new law. These principles are then applied to the interpretation of the due process clauses of the Fifth and Fourteenth Amendments to the Constitution of the United States. It sketches one avowedly nondeferentialist conception of judicial responsibility, one straightforwardly deferentialist conception, and one conception that is a hybrid of the two. Taken as competing accounts of the existing norms governing legal interpretation by legally authorized actors (typically the judiciary), it is argued that the real dispute is between the deferentialist and the hybrid view.
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