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July 12, 2005
The constitution of the Constitution
Paul Mirengoff exposes the fallacy of "defining judicial activism and restraint as willingness to vote, respectively, to overturn and uphold legislation":
The key distinction here is that conservative judges tend to determine what the Constitution does and doesn't protect and prohibit based on a careful reading of what the Constitution says and how it originally was understood. Liberal judges tend to determine the meaning of the Constitution based on their policy preferences, and because those preferences often bear little relation to those of the Constitution's drafters, they rely on whatever they can get their hands on. It may be true that conservative judges often vote in support of their policy preferences too. But, as conservatives, their policy preferences are likely to reflect the traditional preferences and values that the authors of the Constitution believed in and set forth in the document. The left-liberal impulse is very different, as Robert Bork has shown.
In other words, don't believe the nonsense about the Constitution as a "living document," even though it's standard fare in America's classrooms. There are laws, and then there is the Constitution.
Posted by bill at July 12, 2005 08:01 AM
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