Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Friday, March 04, 2005

'Thinking Like a Lawyer' and Reaching the Right Result in Constitutional Law

A link to a link to a comment (apologies). Over at Obsidian wings, find a very insightful discussion of constitutional jurisprudence. The gist is that the putative distinction between constitutional originalism (in one iteration, see Scalia) and a "living constitution" approach is less substantial than it is typically portrayed. Rather, it is suggested, what really happens is that pretty much everyone 'thinks like a lawyer' (that is to say, works hard to stick to the principle of stare decisis) in their treatments of 'settled' constitutional issues, but that when confronted with a hard case, where hide-bound precedent and the right result might appear to diverge, certain judges may loosen their determination to conservatively construe the law, and instead step out a bit in search of a theory to support the desired result.

To the extent that this stepping out is jurisprudentially suspect, the author suggests, Associate Justice Clarence Thomas becomes the most consistent member of the Court, even though his rigidity leads to some "kooky" arguments and results. It's not every day that you see Thomas portrayed in a positive light. That novelty alone justifies a quick read.

But of more material interest, on an issue where discussion among the media, often by pundits lacking a legal education, tends to be superficial, misinformed, and flattened under the weight of ideological dogma, it is truly delightful to see some reasoned, insightful discussion of the topic, even if it suggests that there are praiseworthy aspects of Justice Thomas's jurisprudence, a rather odious proposition. Check it out.


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