originalism and moral skepticism
laycockd at umich.edu
Sun Sep 3 09:41:02 PDT 2006
A while back, when I said something to the effect that originalism
does not lead to restraint -- on this list, I think -- an originalist
responded that that was an obsolete argument -- that no originalist
who had graduated since 1982 claimed that restraint was at all a
purpose or benefit of originalism.
Quoting Frank Cross <crossf at mail.utexas.edu>:
>> It seems quite obvious the original meaning originalism is
>> restrained as compared to some constitutional theories, e.g. as
>> compared to Dworkin's theory or to strong constitutional
> I'm immediately skeptical when a sentence is begun with "it seems
> quite obvious." It is not so to me. I think the issue requires a
> little closer scrutiny, and I've seen little suggesting that
> the claim.
> It may be true, but I am struck that Breyer may be the best example
> of instrumentalism and he also may be the most restrained of the justices.
>> On 8/24/06, MARK STEIN
>> <<mailto:markstein at prodigy.net>markstein at prodigy.net> wrote:
>> The "Mark" to whom Tim replies is Mark Graber, but let me just
>> repeat the old point that originalism is not restraint. It is one
>> thing to decide moral questions through democratic processes, and
>> quite another to impose the moral views of the Founders-- views
>> on many issues are almost universally rejected today.
>> Mortimer Sellers <<mailto:msellers at ubalt.edu>msellers at ubalt.edu>
>> I would like to come out as one of those people (dismissed by Mark
>> "mistaken"), who believes that judges and citizens should
>> defer to the liberal protections and democratic processes embedded
>> the U.S. Constitution.
>> This gets to the heart of constitutionalism. I think that it is
>> humility, not moral skepticism, which should encourage us to
>> well-designed constitutional procedures of democratic
>> On particular moral questions, I may think that I know the answer,
>> be mistaken. This does mean that there is no right answer, but
>> should recognize the possibility of my own error and sometimes
>> good procedures, even when I have not been completely convinced of
>> result that they yield.
>> Tim Sellers
>> Lawrence Solum
>> John E. Cribbet Professor of Law
>> University of Illinois College of Law
>> 504 East Pennsylvania Avenue
>> Champaign, IL 61820-6909
>> <mailto:lsolum at gmail.com>lsolum at gmail.com
>> http://lsolum.typepad.com/legaltheory/ (blog)
>> (homepage at the University of Illinois)
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> Frank Cross
> McCombs School of Business
> The University of Texas at Austin
> 1 University Station B6000
> Austin, TX 78712-1178
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
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