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View Diary: Con Law Professor Op-Ed: Let's Give Up on the Constitution (22 comments)

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  •  Originalism is the one that makes the most sense (1+ / 0-)
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    Timaeus

    at first blush, with the argument being to pass new laws when we have to. But yeah, even just a semester into law, I've quickly picked up that whether originalism or modern interpretation is used on any law - not just the Constitution - seems to be more dependent on the justices' sense of justice moreso than legal considerations, at least on major points of consideration.

    •  I guess I don't understand the point of that, (2+ / 0-)
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      Publius2008, ballerina X

      though.  "There is disagreement, ergo the process should be scrapped."  Seems like a very odd argument to me.  It's like saying that because scientists disagree on some points that the scientific method is meaningless.  At first blush, it reads like epistemic nihilism, and wrong to boot.

    •  That's the reality. (0+ / 0-)

      More than 30 years ago, in first-year Property, we had been given five or six cases to read, with the casebook clearly trying to make the point that each decision was based on a legal rule.

      I was the first person called on to stand up and engage the professor in dialogue, usually a dreaded experience and usually only lasting a few minutes.

      But I was well-prepared and insisted on holding forth for the entire hour.  I argued that the jazz about legal rules in those cases was just artifice.  Instead, I argued, each had reached the just result; the judge had decided which way to go, and then selected the rule that supported that decision.

      I didn't persuade the professor, but I did persuade (or at least influence) many of my fellow law students.  I still think I was right.

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