Copyright Clause Shows Fallacy Of Originalism

Law360, New York (March 27, 2017, 6:08 PM EDT) -- With U.S. Supreme Court confirmation hearings of Judge Neil Gorsuch underway, headlines are full of items about the so-called “original meaning” theory of constitutional interpretation. The late Justice Antonin Scalia was the most well-known proponent of this doctrine, which calls for judges to determine the meaning of a constitutional provision by ascertaining how the provision was understood by “a reasonable person” at the time it was drafted. Thus, originalism tends to focus on the meaning of words as they were understood when used by the framers as the touchstone for constitutional interpretation. The original meaning theory rejects the notion that the Constitution...

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