Thursday, December 07, 2006

Scalia V. Breyer

Interesting debate between the two Supreme Court justices with transcript here. Haven't read it through entirely myself, but its proving quite interesting thus far. For an overview, see the Slate article from today.

Also from the legal world, I urge everyone who has an online subscription to the NYT to read Stanley Fish's blog. He posts about every week, and often times the discussions are interesting and attract a peculiarly diverse range of comments, for the NYT anyway. The debate that has held my intellectual attention and still confounds me to a certain extent is one that began with Fish's October 22 blog entry about professors bringing politics into the classroom. In standard Fish fashion, he deviates from the liberal norm, though this time it seems less like self-indulgence and more like an attempt to lay-out something substantial and nuanced. For those without NYT access, e-mail me and I will send you the resulting 225 or so pages worth of criticism, responses, and discussion.

1 comment:

Smectymnuus said...

This Slate article is very interesting. I found this paragraph to be of particular note, for it deals with originalism:

'Breyer says that if the only thing that matters is historical truths from the time of the Constitution, "we should have nine historians on the court." Scalia says, "It's not my burden to prove originalism is perfect. It's just my burden to prove it's better than anything else." He adds that a court of nine historians sounds better than a court of nine ethicists.'

I am quite opposed to originalism. I thought about how to express this opposition for a while, and then I remembered that my friend Tom Paine does so concisely and effectively in his _Rights of Man, Part I_. Paine, writing in 1791, is criticizing Burke for his steadfast belief in constitutional precedent, particularly his conviction that the constiutional changes made after 1688 under William and Mary were binding for all posterity and could never be changed or revoked. There are obvious parallels here with American constitutional originalism.

'The circumstances of the world are continually changing, and the opinions of men change also; and as government is for the living and not for the dead, it is the living only that has any right in it. That which may be thought right and found convenient in one age may be thought wrong and found inconvenient in another. In such cases, who is to decide, the living or the dead?'