Originalism
Posted at 11:46pm on Apr. 29, 2008 In Praise Of K's
By Pejman Yousefzadeh
Robert Levy bemoans the almost-complete elimination of the Contracts Clause from our Constitutional jurisprudence. And well he should; here is an instance where originalists ought to prefer Thomist jurisprudence to the Scalian variety. Though I do not cover it in my article, one of the salient aspects of Justice Thomas's originalist approach is that he is less willing to heed stare decisis when it runs counter to originalist findings. Justice Scalia, by contrast, is more willing to let faulty opinions stand. In some cases, he may be right and it may be too difficult to put the toothpaste back in the tube, jurisprudentially speaking. But in others, the Thomist viewpoint is the way to go, and too often, Justice Scalia disappoints by not embracing Thomist jurisprudential principles.
Posted in Constitutional Law | Law | Originalism | The Contract Clause — Comments (4)/ Email this page » / Read More »
Posted at 1:24pm on Mar. 26, 2008 Feddie v. Publius: Original Meaning and the Second Amendment
By Feddie
While it is true that the "colonial era has passed," the colonial Constitution is still with us. You may recall that "we the people" entered into a compact of sorts vis-a-vis this Constitution, and agreed to certain terms. We also recognized certain natural rights "retained" by the people, some of which were enumerated. One of those rights was to right to "bear arms." And while I understand that you and others like to think that there is a case to be made for viewing the Second Amendment as a collective-based right (i.e., that the people only have the right to own guns as members of a militia), no legal scholar worth his salt really believes that to be the case. Heck, even Larry Tribe has conceded the obvious. But why take his word for it. Let's see what Justice Joseph Story has to say on the matter, shall we?:
Posted in Law | Originalism | Second Amendment — Comments (14) / Email this page » / Read More »
Posted at 8:35pm on Jan. 9, 2008 Huck on Judges
By Alexham
For some time now, many critics of Governor Huckabee have questioned his commitment to appointing conservative justices/judges as president.
Well, Governor Huckabee has finally updated his website to address this issue directly:
One of the greatest ongoing threats to our constitutional republic is the ever-increasing politicization of the federal judiciary. Instead of interpreting the law according to its plain or original meaning, many judges are using the Constitution and statutes passed by Congress as a mere pretense for imposing their policy preferences on the American people. This is unacceptable. The role of a judge is to interpret the law, not to legislate from the bench; and as president, I will only appoint men and women who share this view.
I firmly believe that the Constitution must be interpreted according to its original meaning, and flatly reject the notion of a "living Constitution." The meaning of the Constitution cannot be changed by judicial fiat. The powers delegated to the federal government by the Constitution come from "We the People," and judges have no right to prohibit the people from passing democratically-enacted laws unless we have explicitly authorized them to do so. Nor can vaguely-worded language in the Constitution be used by judges to give them power over subjects the framers never intended our founding document to address. As such, any interpretation of the Constitution that is based on "evolving standards of decency," penumbras, or any other judicial fiction, is antithetical to the rule of law, and must be forcefully challenged.
As president, I will appoint justices and judges who not only share my judicial philosophy ( e.g., Chief Justice John Roberts, Justice Antonin Scalia, Justice Clarence Thomas, and Justice Samuel Alito), but who also have established themselves within the conservative legal community as faithful adherents of originalism and textualism. The stakes are simply too high to do otherwise.
Finally, I wholeheartedly believe "that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be"; and I will do everything in my power as president to promote these cherished principles.
Now, I realize that I am biased, but that's about as strong a statement as a judicial conservative could possibly hope for from a presidential candidate. So, while there are still reasons for many of you to oppose Governor Huckabee's candidacy, I hope this issue is no longer one of them.
Posted in 2008 | Judges | Mike Huckabee | Originalism — Comments (57)/ Email this page » / Read More »
