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Tuesday, October 25, 2005

Rule by Judicial Fiat 

If you're ever starving for some good fiction to read, pick up the U.S. Reporter -- or better yet, a law school con law casebook -- you'll get all the greatest hits in one place. It's telling that at least twice a class a colleague of mine says, "I don't agree with the reasoning of this opinion, but I agree with the result." That's not good.

There is no such thing as a right to privacy. I am convinced that it is made up. Just as a maxim of interpretation, one would think that such an expansive right would be explicitly set out in the Constitution, right? Guess not. I prefer the Equal Protection Clause myself because it has the benefit of actually being in the Constitution. Who knew?



The line between judicial interpretation and judicial creation is not always clear, and the distinction is one of degree. However, there must be a difference if there is to be the rule of law and not rule by judicial fiat.


I don't understand why textualism is a bad word. The Constitution is a legal document. True, it is not a statute, but it is also not a vague declaration of good intentions. There must be a limit to the ruminations of the courts, a tether that keeps their active imaginations out of the ether and close to Earth. Fortunately, there is ... it's called the United States Constitution.

And furthermore, enough of every goddamn justice writing his own opinion. It's getting silly:

Justice Asswipe, concurring in the judgment, joined by Justice Tagalong except as to everything after the semicolon in Part IVa, et cetera.

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