Kagan Quote

[RJLipkin at aol.com]

Of course, no  one suggested that Justices possess knowledge about the books 
and articles  of constitutional theorists, self-proclaimed or otherwise.  The 
issue in  the "Questioning Miers" thread was whether asking nominess about 
their knowledge  of constitutional law, history, and theory is a fair subject for 
a confirmation  hearing, not what she knows about scholarly works on these 
topics. We weren't  told the content of the gathering of constitutional law and 
theory buffs.   But if the content included constitutional law and theory, as 
it certainly does  in actual cases, then shouldn't a Justice find this 
discussion  relevant?
 
        I count the following to be  among the content of theoretical 
discussions of constitutional law:  constitutional methodology (textualism, 
originalism, precedent, history, and so  forth, institutional questions (which branch 
gets to decide constitutional  meaning), how should we determine levels of 
generality of rights and traditions  in constitutional adjudication, what's the 
best (correct) understanding of  federalism, separation of powers, individual 
rights, does (should) the  Constitution change informally, and of course a host 
of other questions.  Any Justice who thinks these questions are irrelevant to 
what he or she  does in adjudication a constitutional conflict ought not to be 
on the  Court. 
 
        In sum, the digression to  what some Justices might think of 
constitutional scholarship rather than  constitutional law, history, and theory 
appears to be the most serious  irrelevancy in this discussion.
 
Bobby
 
Robert Justin  Lipkin
Professor of Law
Widener University School of  Law
Delaware
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