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NINOMANIA

:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::


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    [::..archive..::]
    ::

    :: Monday, December 04, 2006 ::
    New avenue of attack on originalism? Cornell's Prof. Bernadette A. Meyler says, yes, the Constitution presumes certain Common-Law background rules -- but those rules were themselves fluid! Their function was only that of "supplying the terms of a debate about certain concepts, framing questions for judges but refusing to settle them definitively."

    To which judges should say: Well, if 18th century Common Law didn't 'settle them definitively,' then neither will we. Back to the legislature with you!

    But what judges probably will do is to take up Prof. Meyler's invitation to be "be responsive to certain alterations in external conditions, rather than static and inflexible." (This despite the fact that the invitation may well be addressed by Prof. Meyler to all who have to interpret the Common Law, and not only to judges.)

    :: David M. Wagner 1:31 PM [+] ::
    ...

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