Tag: Interpretation

Reductionism, Not Western Civilization, is the Great Satan

Those currently in opposition to the construction of a mosque near Ground Zero don’t seem to want to understand the whole picture.  They will not even entertain anything other than views stepped in prejudice and fear, seeing an enemy in the face of every person of Middle Eastern descent.  While in stuck in this merry-go-round that passes for substantive discourse, they are trusted supporters of a system that sees the sum of its parts as more important than the whole.  Today’s believers in preemptive prejudice take stock in reductionism, a theory that justifies bigotry nicely.  Indeed, their system of belief relies more on personal bias and illogical rationales rather than outward truth.  The spread and growth of this, its own near-religion upsets me more than that of the genuine terrorists themselves.

Constitutional Interpretation, Originalism and a Living Constitution

Another reprint on the Constitution. This is leading up to something I promise.

In discussing Scott Lemieux's piece on Dred Scott (Lemieux responded here), I touched upon the issue of Constitutional Interpretation. On Constitutional interpretation I wrote:

It seems undeniable to me that Dred Scott was a results oriented decision. And in that respect, Lemieux's statement that “[a]spirational” jurisprudence is only as good as the aspirations of the judge involved” is obviously correct. However, that does the “theory of a living Constitution” short shrift. The theory (or at least my theory) of a Living Constitution does not rest on “aspirational jurisprudence”, but rather on common law judicial principles and the Constitution itself.

More on this on the other side.

Dred Scott, Originalism and A Living Constitution

Originally published at Talk Left in October 2006. Warning, will likely put you to sleep.

Scott Lemieux pens a very interesting article on the Dred Scott decision and its merits  and meaning in today's law and politics. It is worth reading in its entirety but  I want to focus on a few points made by Lemieux:

. . . George W. Bush — demonstrating the forthright advocacy of conservative jurisprudence for which Republicans are famous — went out of his way to assure the public during one of the 2004 presidential debates that he would not, in fact, appoint Supreme Court justices who would interfere with the ability of Congress to ban slavery in Puerto Rico. Bush's strange remarks were widely interpereted as a dog-whistle signal to his anti-abortion-rights base, some of whose intellectuals (most notably Justice Scalia in his dissents in Planned Parenthood v. Casey and Stenberg v, Carhart) have compared Roe v. Wade to Dred Scott. Jeffrey Rosen turned this comparison against Scalia in his merciless evisceration of the justice's support for the Court's egregious Bush v. Gore decision. And on it goes. But should this much weight really be put on Dredd Scott?

. . . The most common attack on Dred Scott, however, does not concern the finer points of interpretive theory. Rather, it's a critique borne out of a romanticized view of legislatures as being better able to resolve difficult social questions than courts. . . .

It may have been the most common attack but it was not the best one. Abraham Lincoln, most notably in his Cooper Union address, presented, to me at least, the most devastating arguments against the legal correctness of the Dred Scott decision. I'll discuss that and a few other things on the other side.