bobsheridan at earthlink.net
Sun Oct 30 08:16:25 PST 2005
Maybe a better way of looking at matters of conlaw precedent, or at
least another way, is not to ask the value of the decision then of
certain cases as judged by today's notions, but how we value it by
today's lights. By today's lights Dred Scott was wrong...it's the
paragon of wrongness. Even constitutional player GWB recognizes that,
although his citation of it may have been a coded message to supporters
from another planet. Whether you agree Marbury v. Madison was rightly
decided or unnecessarily decided, it's the boat we're riding in. You
may say that on our national voyage the vessel has made a few wrong
turns especially when, with one steersperson (don't you just hate that?)
or another at the helm the social policy aspects rub us the wrong way,
but the voyage nevertheless continues and it's difficult to change
course such that old route changes are nullified. We have to go on from
HERE and NOW, not then, as we're too far beyond then, usually.
The other thing is that a group of conlawprofs is the LAST place that I
think I'd look for consensus on anything other than that we can usually
agree to disagree on everything, which is probably as it should be.
We might be able to agree that Grant v. Lee (as it was once said around
here by someone good) overruled Dred Scott and that the resulting 14th
Amd. is, on balance, a good thing, subject to a few glitches here and
there where the social conservatives or the social liberals got the bit
in their teeth once to often and ran with it. After all, constitutional
law questions are grounded first on political questions, starting with
the decision to break away from the mother country and write a charter
of our own...
DavidEBernstein at aol.com wrote:
> McCulloch v. Maryland?
> In a message dated 10/30/2005 10:34:31 AM Eastern Standard Time,
> SLevinson at law.utexas.edu writes:
> So are there any examples of presumptively wrongly-decided cases
> that merit "superprecedential" respect? If one thinks a case was
> rightly decided, then one is not, in any interest sense,
> "following precedent."
> - Sanford Levinson
> (Sent from a Blackberry)
> David E. Bernstein
> Visiting Professor
> University of Michigan School of Law
> George Mason University School of Law
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