MarkD
Junior Chimp
Posts: 5,244
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« on: October 16, 2020, 08:30:22 AM » |
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Originalism, also known as Interpretivism, according to how the latter term was defined in Prof. John Hart Ely's 1980 book "Democracy and Distrust."
As Judge Learned Hand said in his radio address in 1935 (later published in his 1952 book "The Spirit of Liberty"), "But the judge must always remember that he should go no further than he is sure the [lawmakers] would have gone, had [they] been faced with the case before him. If he is in doubt, he must stop, for he cannot tell that the conflicting interests in the society for which he speaks would have come to a just result, even though he is sure that he knows what the just result should be. He is not to substitute his juster will for theirs; otherwise it would not be the common will which prevails, and to that extent the people would not govern."
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