John Roberts's Refusal to Defend Federal Statutes inMetroBroadcasting

[Earl Maltz]

I'm not sure that I count as "anybody," but I buy the story.  But then 
again, I don't believe that the Constitution, the Bill of Rights, or the 
Reconstruction amendments were originally understood to provide glittering 
generalities of Lockean liberalism.  Instead, they were crafted in legal 
terms of art, well-understood at the time (if a bit unclear at the margins, 
like all legal terms).

If you are a masochist who wants to see all of the evidence for this view 
(at least with respect to the Fourteenth Amendment), I would direct you to 
The Fourteenth Amendment and the Law of the Constitution, published by the 
Carolina Academic Press.  For now I''ll content my self with my favorite 
passage from the evolution of the Fourteenth Amendment.  John Bingham is 
asked to by Andrew Rogers to define the term "due process of law"  Bingham 
replies "the courts have settled that long ago, and the gentleman can go 
read the cases."

At 10:45 AM 9/8/2005 -0500, you wrote:
>  I don't know if anyone really buys the Scalia/Meese constraint 
> story.  But it seems to me that lots of people would agree with an 
> "originalism" that says we have to identify a set of values, at a 
> relatively high level of generality, that the Constitution was originally 
> intended to endorse, and then figure out the implications of those values 
> for our cases.  That, I thought, was the Warren/Brennan approach.
>
>====================================
>Samuel R. Bagenstos
>Professor of Law
>Washington University School of Law
>One Brookings Drive
>St. Louis, MO  63130
>314-935-9097
>Personal Web 
>Page:  http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
>Disability Law Blog:  http://disabilitylaw.blogspot.com/
>
> >>> Scott Gerber <s-gerber at onu.edu> 9/8/2005 10:35 AM >>>
>I'll respond to both Sam Bagenstos and Frank Cross via this post.  I'll
>reply briefly, both because I hope folks will read the full treatments
>mentioned in my prior post and because I'm in the middle of preparing for
>class.  (FYI, I know Mark Tushnet at least read my Thomas book.  He kindly
>cites it in several places.  Consequently, Mark is immune from my criticism
>of legal elites!)
>
>It's easy to oppose affirmative action and support privacy, which I do, on
>liberal originalist grounds.  With respect to affirmative action, the
>Declaration of Independence commits the regime to a Lockean liberal
>approach to government:  the Constitution protects individual, not group
>rights.  That's why Justice Thomas opposes affirmative action.
>
>Another central tenat of Lockean liberalism is that government should be
>limited (charged chiefly with protecting individual rights).  Privacy is
>CENTRAL to this conception of government.
>
>With respect to abortion, the answer to that depends on when life begins.
>If life begins at conception, the Constitution can't protect abortion
>because the fundamental law of nature in Lockean liberalism is the
>preservation of life.  If life doesn't begin at conception, a woman has a
>natural liberty right to choose abortion (up to the point when the fetus is
>a life).
>
>All of this is discussed in the previously-mentioned sources.
>
>Best,
>Scott
>
>
>
>At 09:52 AM 9/8/2005 -0500, Samuel Bagenstos wrote:
> >Prof. Gerber's comment, as usual, makes me very curious.  I wonder if he
>wouldn't mind explaining, for the benefit of the list, whether, if one can
>be an originalist opponent of affirmative action, one could also be an
>originalist defender of Griswold and Roe.  I'm actually very interested in
>what would be the distinction, from an originalist perspective, between the
>two settings.
> >
> >====================================
> >Samuel R. Bagenstos
> >Professor of Law
> >Washington University School of Law
> >One Brookings Drive
> >St. Louis, MO  63130
> >314-935-9097
> >Personal Web Page:
>http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
> >Disability Law Blog:  http://disabilitylaw.blogspot.com/
> >
> >>>> Scott Gerber <s-gerber at onu.edu> 9/8/2005 9:43 AM >>>
> >I respectfully suggest that Marty Lederman is oversimplying the original
> >intent approach to constitutional interpretation.  As I demonstrate in my
> >book FIRST PRINCIPLES:  THE JURISPRUDENCE OF JUSTICE THOMAS (NYU Press,
> >1999; expanded ed. 2002), Justice Thomas employs originalism in his
> >opposition to affirmative action (albeit liberal originalism).  I explain
> >the difference between conservative originalism and liberal originallism in
> >TO SECURE THESE RIGHTS:  THE DECLARATION OF INDEPENDENCE AND CONSTITUTIONAL
> >INTERPRETATION (NYU Press, 1995).  There is an article about my theory of
> >originalism in one of the recent issues of the Harvard Journal of Law and
> >Public Policy (it's not written by me, but rather about my theory).
> >
> >Legal elites have probably read none of the three above-cited sources.
> >
> >Scott Gerber
> >Law College
> >Ohio Northern University
> >
> >
> >
> >Marty Lederman writes [in part]:
> >
> >And, if it's the case that Roberts had such strong views about the
> >constitutionality of federal affirmative action, I think we can also assume
> >this: that his constitutional understandings and commitments are not
> >determined by plain (or "original") meaning, or by original intent -- not
> >that he has ever suggested otherwise.
> >
> >**********
> >Scott Gerber
> >Law College
> >Ohio Northern University
> >Ada, OH 45810
> >419-772-2219
> >http://www.law.onu.edu/faculty/gerber/
> >
> >_______________________________________________
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> >
> >
> >
>**********
>Scott Gerber
>Law College
>Ohio Northern University
>Ada, OH 45810
>419-772-2219
>http://www.law.onu.edu/faculty/gerber/
>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as 
>private.  Anyone can subscribe to the list and read messages that are 
>posted; people can read the Web archives; and list members can (rightly or 
>wrongly) forward the messages to others.