originalism and moral skepticism
emaltz at camden.rutgers.edu
Sun Sep 3 18:28:23 PDT 2006
Breyer? Restrained? Is there data which demonstrates that Breyer is less
likely than Scalia, Thomas and Kennedy to vote to strike down the actions
of Congress or the state governments.
At 10:30 AM 9/3/2006 -0500, Frank Cross wrote:
>> 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 instrumentalism.
>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 supports 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 that on many issues are almost
>>universally rejected today.
>>Mortimer Sellers <<mailto:msellers at ubalt.edu>msellers at ubalt.edu> wrote:
>>I would like to come out as one of those people (dismissed by Mark as
>>"mistaken"), who believes that judges and citizens should generally
>>defer to the liberal protections and democratic processes embedded in
>>the U.S. Constitution.
>>This gets to the heart of constitutionalism. I think that it is decent
>>humility, not moral skepticism, which should encourage us to respect
>>well-designed constitutional procedures of democratic decision-making.
>>On particular moral questions, I may think that I know the answer, but
>>be mistaken. This does mean that there is no right answer, but that I
>>should recognize the possibility of my own error and sometimes defer to
>>good procedures, even when I have not been completely convinced of the
>>result that they yield.
>>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
>>(homepage at the University of Illinois)
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