The Originalism of American Federal Judges or the Establishment of Constitutional Foundations for Economic Liberalism Since the 1970s

Thierry Kirat and Frédéric Marty

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Abstract: American originalism, whatever its variants, participates in a conservative turn in constitutional interpretation contrasting with the progressive movement of the living constitution. During the 1960s and the Warren era of the Supreme Court, law was seized as a tool for social transformation, enabling progressists' advances in individual rights and supporting federal policies aimed at regulating the economy. Originalism, on the other hand, whether conceived from the perspective of following the intentions of the lawmakers or respecting the letter of the text, has led to conservative decisions not only in societal matters but also in economic regulation. This chapter shows that despite their fundamental theoretical differences, originalism and the Chicagoan Law and Economics have favoured an under-enforcement of antitrust rules by introducing a pro-defendant bias. In addition, the use of originalist interpretation reveals to be quite teleological.

Keywords: originalism; antitrust; commerce clause (search for similar items in EconPapers)
Date: 2022-12-03
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Published in Nathalie Lévy; Nathalie Champroux; Selma Josso; Alexis Chommeloux; Stéphane Porion; Audrey Damiens. The Anglo-American Model of Neoliberalism of the 1980s, Springer International Publishing, pp.137-153, 2022, 978-3-031-12073-2. ⟨10.1007/978-3-031-12074-9_9⟩

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Persistent link: https://EconPapers.repec.org/RePEc:hal:journl:halshs-03883709

DOI: 10.1007/978-3-031-12074-9_9

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