Liberal

[Bob Sheridan]

Regarding the liberal-conservative distinctions, the epithet "activist," 
and their relevance to this list, the following:

The list contributor who questioned the relevance of my post quoting 
Geoffrey Stone's analysis, which appeared in the Chicago Tribune, of the 
term 'liberal' as explanatory of considerable Supreme Court 
decision-making, which started this discussion, apologized privately 
that he'd accidentally missed something before posting.  No problem; the 
world of email is a strange place indeed.   The relevance of Prof. 
Stone's commentary does not appear to be in issue, as it is plain.

Prof. Zimmer later employed a term which resonated with me because it 
was suggestive of a way that I was trying to look at Constitutional Law, 
when he referred to a "structural level" of constitutional 
interpretation.  I inquired what he meant by "structural," imagining 
that our Conlaw edifice might be conceived to have some underlying 
structure, such as liberal or conservative attitudes, which serve as a 
foundation for much decision-making.  But structure also implies 
"superstructure," which can mean the skeleton of a skyscraper that 
reaches to the highest floor.  The distinction he was making was to 
structure of government as opposed to individual rights, he kindly 
explained.

Which leaves me back at the puzzlement which prompted my curiosity and 
the Stone quote.  Here's what got me thinking:  We study Conlaw, based 
on the text and the cases, as though it were a body of knowledge and law 
somehow separated from the rest of law and knowledge, which is a 
mistake.  It is of interest to me to try to understand the attitudes 
which underly, and suffuse, constitutional law and decision-making.  
Conservative and liberal, today, are certainly important components, as 
are other values called moral, religious, political, economic, activist, 
etc.  Arguably they are 'structural' in some sense as they support, 
indeed drive, constitutional decision-making regardless by whom made.  
It would be difficult indeed to do justice to a case without some 
understanding and discussion of these.

It occurs to me that in briefing a case according to the usual facts, 
procedure, law, issue, rationale method  (I've  forgotten the rubric and 
its acronym, fortunately), that we should include a slot for 
"structural" components of analysis such as the above.  While we may not 
ask students to do so explicitly, we certainly do implicitly when 
requesting the rationale, or when writing ourselves.

I appreciate the discussion and hope it will continue from time to time.

Bob S.
sfls





Michael Richardson wrote:
>
>
>
> I have a question that might keep us talking about liberals and 
> conservatives a bit and remain on topic to the list.
>  
> I've always heard "activist" judges (i.e. those that believe the 
> Constitution is a living document, etc.) contrasted with 
> "conservative" judges who steadfastly follow tradition and precedent.  
> Does that make the activists "liberal"?
>  
> Wondering,
>  
> Michael Richardson
>
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