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The Embattled Constitution$
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Norman Dorsen

Print publication date: 2013

Print ISBN-13: 9780814770122

Published to NYU Press Scholarship Online: March 2016

DOI: 10.18574/nyu/9780814770122.001.0001

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Living Our Traditions

Living Our Traditions

(p.273) 10 Living Our Traditions
The Embattled Constitution

Robert H. Henry

NYU Press

This chapter examines originalism by focusing on the ideas of Justice John Marshall Harlan II, known for his dissent in the case of Poe v. Ullman in which he argued that the U.S. Constitution must be interpreted in light of history and tradition, noting “[t]hat tradition is a living thing.” It first provides a bit of biography about Harlan to explain why he is so influential in interpretive debates. It then considers Poe v. Ullman as an example of Harlan's method and goes on to analyze his famed “living traditions” and his interpretive judicial restraint. It also discusses Harlan's argument that a court decision that departs from living traditions will not survive long.

Keywords:   originalism, John Marshall Harlan II, Poe v. Ullman, U.S. Constitution, judicial restraint, living traditions

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