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In Defense of Looseness In Defense of Looseness

In Defense of Looseness - PowerPoint Presentation

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In Defense of Looseness - PPT Presentation

The Heller decision an analysis by Justice Posner Warm up Orignalism Constitution as Straitjacket Faux originalism Uniform legal rules and national rights Judges and bad public policy Legally enforceable rights and social change ID: 334369

rights decision originalism constitutional decision rights constitutional originalism constitution uniform social faux judges national enforceable principles method government policy

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Slide1

In Defense of Looseness

The Heller decision – an analysis by Justice PosnerSlide2

Warm up

Orignalism

Constitution as Straitjacket?

Faux

originalism

Uniform legal rules and national rights

Judges and bad public policy?

Legally enforceable rights and social change?

Law office history

judicial modestSlide3

Thesis:

The Heller decision is

questionable in

both method and result

,

and

it is evidence that the Supreme

Court…Slide4

Originalism –True and Faux

Originalism

without

________________________is

faux

originalism

.

True

originalism

licenses

loose construction.

is

especially appropriate for interpreting a constitutional provision

ratified

more than two centuries ago,

.

dealing

with a subject that has been transformed in the intervening

period by

social and technological change, including urbanization and a revolution in warfare and weaponrySlide5

The majority opinion (Scalia):

concluded that the original, and therefore

the authoritative

, meaning of the Second Amendment is

___________________ for __________________________

Scalia's entire analysis rests on

the interpretive method

called _____________________

This method …….

The

irony Slide6

The Hidden Ideological foundations of the Decision

The idea behind the

decision may

simply be that turnabout is fair

play?Slide7

What if the Judge thought the idea was simply bad policy?

But judges are not supposed to invalidate laws merely because, as legislators, they

would have

voted against them.Slide8

The Constitution as straitjacket??

 

The

proper time for using loose construction

to enlarge

constitutional restrictions

on government

action

is when

the group

seeking action ….

Constitutional

interpretations that relax rather than tighten the Constitution's grip on the

legislative

and

executive branches of government

are especially welcome when

….Slide9

On uniform rules

A uniform rule is neither necessary nor appropriate

.Slide10

Do we need national rights?

The

question of whether to nationalize

an issue

in the name of the Constitution calls for an exercise of

judgment

Two considerations?

does not speak with any clarity,

and a uniform national policy would override differences in local

conditions, nationalization

may be premature.Slide11

Increasing judicial business (court Crowding)

All

that is clear is that an absolute ban on possessing a pistol is unconstitutional.

The other

restrictions that a government might want to impose are up for grabs.

It

may take many years

for the

dust to settle--many years of lawsuits that our litigious society does not needSlide12

Legally enforceable rights and social change?

Conservatives rightly believe, moreover, that the efficacy of legally enforceable rights as an engine

for social

reform is overrated.

The

effects even of such well known and generally applauded decisions

as those

invalidating racial segregation of public schools and the

malapportionment

of state legislatures

are uncertain

, and may not have been, on balance, beneficial.Slide13

Using Just the History to decide an issue

"

law office

history

.“.

Citing lawyers and judges and NOT historians.Slide14

What has changed to justify

heller

?

Only the composition of the Supreme CourtSlide15

Can we purge

political principles from constitutional

decision-making?

There is no way to purge political principles from constitutional decision-making,

but

they do not have to be liberal or conservative

principles?

A

preference for judicial

modesty-

It

would have to be imposed. It would be a discretionary choice by the justices.