Wednesday, July 06, 2005

Three Lessons for the Great Debate Over The New Justice

I like Randy Barnett :
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--e.g. the "public use" portion of the Takings Clause--that have been ignored for far too long.
I think Barnett offers very good advice to any one interested in the Supreme Court and a written Constitution, in contrast to a "living constitition" that lives according to the preferences of 5 justices of the Supreme Court.

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