What is this statement saying? (user search)
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  What is this statement saying? (search mode)
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Poll
Question: "A glass of milk, being necessary for a balanced breakfast, the right of the people to keep and own cows, shall not be infringed."
#1
You can only own cows if you use them to obtain glasses of milk that you drink at breakfast
 
#2
Drinking milk with breakfast is just one reason as to why the right to own cows should not be infringed
 
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Total Voters: 34

Author Topic: What is this statement saying?  (Read 1897 times)
MarkD
Junior Chimp
*****
Posts: 5,185
United States


« on: October 05, 2020, 09:32:37 AM »

No, "reinterpretations" aren't allowed; please engage directly with what is written in the text.

Your assertion that only originalism interpretations are valid is nonsensical.

Paraphrasing, slightly, Robert Bork, from his book "The Tempting of America."

There exists among some lawyers and judges a weary cynicism that often finds expression  in the quotation of words attributed to Charles Evans Hughes: "The Constitution is what the judges say it is." Hughes was hardly the first to have made the point. "[W]hoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first wrote or spoke them," said Bishop Hoadly in 1717. These statements are sometimes taken to ratify cynicism. They should not be. Nobody familiar with Hughes's career would suppose he meant that power is all. It is essential to bear in mind the distinction between the reality of judicial power and the legitimacy or morality of the use of that power.
It is a truism, but it is not anything more than a truism that, for practical purposes, at any given moment the Constitution is what the Justices say it is. Right or wrong, the statute you petitioned your legislature to enact has suddenly become void just because the Justices say it is. But behind that reality lies another fact just as real, and one with normative meaning: there is a historical Constitution that was understood by those who enacted it to have a meaning of its own. That intended meaning has an existence independent of anything judges may say. It is that meaning the judges ought to utter. If law is more than naked power, it is that meaning the Justices had a moral duty to pronounce. Hoadly and Hughes, far from reconciling us to cynicism, emphasize the heavy responsibility judges bear. Power alone is not sufficient to produce legitimate authority.
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