IN DEFENSE OF LOOSENESS Richard A Posner and

  • Slides: 6
Download presentation
IN DEFENSE OF LOOSENESS Richard A Posner and the Supreme Court’s Decision-Making Process

IN DEFENSE OF LOOSENESS Richard A Posner and the Supreme Court’s Decision-Making Process

The Thesis Courts decision in D of C v. Heller is questionable in in

The Thesis Courts decision in D of C v. Heller is questionable in in both method and result Supreme Courts decisions currently emphasize a freewheeling discretion strongly flavored with ideology Scalia claimed that the Heller decision was a return to “originalism”. In fact originalism would have yielded the opposite result.

How the Court Reached the Heller Decision Actual wordings Decoupling of clauses The 18

How the Court Reached the Heller Decision Actual wordings Decoupling of clauses The 18 th century tradition of legislative interpretation: loose or flexible Testimony of Blackstone and Marshall It is difficult to amend the Constitution so … No straitjackets No suicide pacts Realities of militias and their arming (arms and homes)

Historical Determination Revisited Adamson v California (1947) Incorporation of the Bill of Rights v.

Historical Determination Revisited Adamson v California (1947) Incorporation of the Bill of Rights v. states Handsprings to rope in the 14 th amendment due process clause Liberals v Conservatives – true motives? Loose construction to prevent a Constitutional straitjacket and the reverse. Case of Kennedy v Louisiana and dp for rape Zelman case and establishment clause and money for religious schools. Kelo case and eminent domain When it is proper to use loose construction to enlarge restrictions on government.

A call for Regionalism Necessity of recognizing regional and local differences A uniform rule

A call for Regionalism Necessity of recognizing regional and local differences A uniform rule is neither necessary nor appropriate. Heller: insufficient respect for Federalism, cultural diversity , local preference and social experimentation. Undemocratic ? Rousseau not democracy? People can move if they are in a minority National rights do exist , of course. Need for judgment as to when they exist and should be enforced as such. Claims about what government cannot do create work for the courts. The efficacy of legally enforceable rights as an engine for social change is overrated.

Posner’s Solution False history is no solution – “snow jobs” The way to get

Posner’s Solution False history is no solution – “snow jobs” The way to get ideology out of court decisions is to adopt ‘judicial modesty’. Less interference with the other branches of government Free the court to deal with the many important nonconstitutional issues that it has tended to neglect.

Posner and Keele Rosch et al Posner andPosner and Keele Rosch et al Posner and
Defense Defense Defense Defense Defense Movement Movement MovementDefense Defense Defense Defense Defense Movement Movement Movement
IN DEFENSE OF LOOSENESS The Heller decision anIN DEFENSE OF LOOSENESS The Heller decision an
Self Defense Defense of Others and Defense ofSelf Defense Defense of Others and Defense of
Defense Mechanisms Defense Mechanisms n Defense mechanisms areDefense Mechanisms Defense Mechanisms n Defense mechanisms are