originalism and moral skepticism

[Earl Maltz]

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.
>>
>>Mark
>>
>>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.
>>Tim Sellers
>>
>>
>>--
>>Lawrence Solum
>>John E. Cribbet Professor of Law
>>University of Illinois College of Law
>>504 East Pennsylvania Avenue
>>Champaign, IL  61820-6909
>>217.244.3960
>><mailto:lsolum at gmail.com>lsolum at gmail.com
>>http://lsolum.typepad.com/legaltheory/ (blog)
>><http://home.law.uiuc.edu/~lsolum/>http://home.law.uiuc.edu/~lsolum/ 
>>(homepage at the University of Illinois)
>>
>>_______________________________________________
>>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.
>
>**********************************************************
>
>Frank Cross
>McCombs School of Business
>The University of Texas at Austin
>1 University Station B6000
>Austin, TX 78712-1178
>_______________________________________________
>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.