For me personally, the greatest defect of the Living Constitution (even a conservative living constitution striking down minimum wage laws, and other laws restricting freedom of contract and economic liberty) is this:
The Living Constitution is based upon the subjective moral and philosophical preferences of the nine unelected lawyers who serve on the Supreme Court from time to time. Thus, it is inconsistent with the Rule of Law, the very principle that legitimizes judicial review. As Judge Bork once said. "The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else." It is the Rule of Elite Men & Women, not the Rule of Law.
What is your strongest reason for supporting either Originalism or the common law Living Constitution?
The web log for Prof. Duncan's Constitutional Law Classes at Nebraska Law-- "[U]nder our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual. In the eyes of government, we are just one race here. It is American. " -----Justice Antonin Scalia If you allow the government to take your liberty during times of crisis, it will create a crisis whenever it wishes to take your liberty.
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I. Tinker A student's right to speak (even on controversial subjects such as war) in the cafeteria, the playing field, or "on the...
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Monday August 28 : Handout on Moore v Harper (PDF has been emailed to you); Originalism vs. the "Living Constitution": Strau...
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Jack Phillips of Masterpiece Cakeshop (art by Joshua Duncan) "We may not shelter in place when the C...
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