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Old October 27, 2020, 08:44 AM   #97
zukiphile
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Join Date: December 13, 2005
Posts: 3,942
Quote:
The direction that person of color leans will, of course, be determined by which party is in power at the time because, as we have seen, qualifications and dedication to the Constitution have become secondary to poitical optics.
That's true, but I meant even more than that.

Thomas is really alone in his commitment to an analytical school that has the text of the COTUS as its foundation. His concurrence in McDonald and his dissent in Raich both answer the question "what does the language of the COTUS as understood at the time of enactment say about this question?", and work from that point. If he concludes that accumulated precedent is in error, he gives it very little weight, if any.

The others of the Heller majority are typically more lawyerly in a manner I mean to be pejorative. Their commitment to originalism, or textualism, involves an effort to bring the tradition of constitutional case law closer to the text, but they don't as boldly repudiate error.

Aside from the fact of my affinity to the substance of Thomas' approach, I think it is important for the Court's social and political authority in the long term. Laymen can find constitutional discussion offputting in part because the answer may involve strings of Sup Ct cases that may or may not bear any intuitive connection to the text of the COTUS. The Court's real authority should be greater where the basis of its calls of "balls and strikes" is the text of COTUS.

The alternative is for the court to develop tests and doctrine of its own creation. That is almost necessarily more partisan, and less forthright and persuasive.

My fingers are crossed that ACB's willingness to question whether a felony for medicare fraud should automatically deprive an individual of his 2d Am. signals a possibility that some of the prior century's innovation could be peeled back.

Last edited by zukiphile; October 27, 2020 at 09:21 AM.
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