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- From: simon@saguenay.iro.umontreal.ca (Daniel Simon)
- Newsgroups: misc.legal,alt.censorship,alt.society.civil-liberty,alt.politics.usa.constitution
- Subject: Re: Judicial Interpretation vs. Legislation
- Message-ID: <1993Jan23.050844.17179@IRO.UMontreal.CA>
- Date: 23 Jan 93 05:08:44 GMT
- References: <1993Jan18.151505.1167@eff.org> <1993Jan21.185438.19181@IRO.UMontreal.CA> <1993Jan21.204805.3768@midway.uchicago.edu>
- Sender: news@IRO.UMontreal.CA
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- Organization: Universite de Montreal, Canada
- Lines: 45
-
- In article <1993Jan21.204805.3768@midway.uchicago.edu> thf2@midway.uchicago.edu writes:
- >In article <1993Jan21.185438.19181@IRO.UMontreal.CA> simon@brome.iro.umontreal.ca (Daniel Simon) writes:
- >>One would have hoped that these same judges and legal scholars, after
- >>devoting such care and attention to the task of mapping out the
- >>complex subdivisions of the free speech/restricted speech spectrum,
- >>might also have made at least a token effort to draw a rough line
- >>between judicial interpretation and judicial legislation.
- >
- >What makes you think they haven't?
-
- Um, the fact that everyone who has argued the importance of such a
- distinction in this forum has gotten shouted down by the local legal
- aces, all of them chanting in unison that such a distinction is
- impossible to make?
-
- >Read Edward Levi's "An Introduction
- >to Legal Reasoning," for example.
- >
- >Or, better yet, Blackstone, who predates the Constitution.
-
- I realize that it is absurd to claim that no legal thinker has ever
- considered the question of how to interpret law, or even that no legal
- thinker has ever advocated one or another restrictive conception of
- constitutional interpretation (it is really constitutional law that is
- at issue here, since rulings that don't invoke the constitution can
- generally be overturned by legislation anyway). My point (which I had
- hoped would be clear from context) is that as far as I can tell the
- consensus view of judges and legal scholars regarding constitutional
- interpretation does not include any explicit notion of restriction on
- the *process* by which such interpretation occurs. As a consequence,
- the process of constitutional interpretation appears to have
- "evolved", and to be viewed as having done so, much the way the
- interpretation itself has evolved--that is, ever in the direction of
- greater breadth and scope for judges to decide as they happen to see
- fit. I would be delighted to be proven wrong, of course; if Mr. Frank
- or anyone else can cite expressions of mainstream legal opinon
- explicitly opposing one or another seriously suggested approach to
- constitutional interpretation as being overly "liberal" (that is, as
- overstepping the line between "interpretation" and "legisation"), then
- I would be at least somewhat comforted.
-
-
- "Que dites vous? C'est inutile? Je le sais! Daniel R. Simon
- Mais on ne se bat pas dans l'espoir du succe`s!" simon@iro.umontreal.ca
- -Rostand
-