Saturday, July 02, 2005
restoring the lost constitutions:
I am an advocate of state constitutions as sources of rights.
These constitutions are mostly lost - people don't read them, lawyers don't argue them, judges don't enforce them.
Randy Barnett, in discussing the lost clauses of the federal constitution at volokh,
makes three points, which would also be applicable to state con's.
LESSON ONE: Watch the switch from a list of ignored textual provision to good and bad results.
LESSON TWO: Watch the switch from meaningful scrutiny to extremely deferential "rational basis" scrutiny, as a means of continuing to ignore portions of the text.
LESSON THREE: Watch for an appeal to "precedent" to attack a nominee who may favor reviving the original meaning of portions of the text----that have been ignored for far too long.
I am an advocate of state constitutions as sources of rights.
These constitutions are mostly lost - people don't read them, lawyers don't argue them, judges don't enforce them.
Randy Barnett, in discussing the lost clauses of the federal constitution at volokh,
makes three points, which would also be applicable to state con's.
LESSON ONE: Watch the switch from a list of ignored textual provision to good and bad results.
LESSON TWO: Watch the switch from meaningful scrutiny to extremely deferential "rational basis" scrutiny, as a means of continuing to ignore portions of the text.
LESSON THREE: Watch for an appeal to "precedent" to attack a nominee who may favor reviving the original meaning of portions of the text----that have been ignored for far too long.
Comments:
Post a Comment
