著者

団上 智也

出版者

関西法政治研究会

雑誌

法政治研究 (ISSN:21894124)

巻号頁・発行日

vol.8, pp.93, 2022 (Released:2022-06-17)

著者

団上 智也

出版者

関西法政治研究会

雑誌

法政治研究 (ISSN:21894124)

巻号頁・発行日

vol.4, pp.135, 2018 (Released:2018-05-28)

著者

団上 智也

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:24330795)

巻号頁・発行日

vol.19, pp.31-51, 2012-12-25 (Released:2018-01-10)

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Originalism as a theory of constitutional interpretation has been continuously sophisticated and has elaborated several variants of its methodology. This may owe to the embracement of the concept of the distinction between constitutional interpretation and constitutional construction to originalism itself. It means that the constitutional interpretation/construction distinction might have played a crucial role to improve originalism and that the distinction might have been useful for originalism in that situation. When considered such a contribution of the distinction to originalism in the aggregate, it seems to be highly important to reconfirm the significance of the distinction's content from the viewpoint of divining the future of originalism. Therefore, in this article, I review the meaning of both the constitutional interpretation and the constitutional construction and attempt to inquire the signification of the distinction of them for originalism.

著者

団上 智也

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:24330795)

巻号頁・発行日

vol.18, pp.55-85, 2011-12-19 (Released:2018-01-10)

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Justice Scalia's majority opinion in District of Columbia v. Heller rests on originalism that he has eagerly advocated for a long time. In this case, he heavily relies on historical inquiry of the language of the Second Amendment applying his own originalism to find the meaning of the article for deciding. On the one hand, this case should be appreciated and applauded for origianlists; however, on the other hand, it is severely criticized especially from the group of historians. This is due to not only that Scalia's "faint-hearted originalism" may be unprincipled or problematic but also that originalism in the present day faces a serious situation in which it may lose its characteristic as a result of theoretical progress. In this article, I try to analyze the majority opinion to clarify why these different evaluations have been raised and to inquire what occurs in originalism as well.

著者

団上 智也

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:24330795)

巻号頁・発行日

vol.17, pp.113-134, 2010-12-24 (Released:2018-01-10)

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Although many scholars seek to find the universal and settled meaning of the ninth amendment and enjoy the richness of the inquiry relating to the unenumerated rights, the current situation about the interpretation of the ninth amendment is too various and complicated. However, thanks to originalism, someone can categorize the series of amassed scholarly works following the several versions of originalism such as original intent originalism, original understanding originalism, original public meaning originalism, and semantic originalism. Each type of originalism may reveal the possible (or acceptable) interpretation over the meaning/character of the ninth amendment or/and the unenumerated rights. In this article, the author has tried to keep various interpretive accounts about the ninth amendment fit into the categories that are the fruits of the theoretical progress of originalism.

著者

団上 智也

出版者

関西法政治研究会

雑誌

法政治研究 (ISSN:21894124)

巻号頁・発行日

vol.5, pp.75, 2019 (Released:2019-06-08)