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Bench Memos

NRO’s home for judicial news and analysis.

Everybody Must Get Stone



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Today the New York Times gives 1,100 words’ worth of prime newspaper real estate to University of Chicago law professor Geoffrey Stone to set us all straight on how to think about the Constitution.  It was actually more words than he needed, so let me provide you with the condensed version in case you are pressed for time:

“Those conservatives who rail about liberal judges ‘making’ law rather than ‘applying’ it get my goat.  Originalism is disingenuous.  We know this because the Constitution contains open-ended language, whose meaning is simply unknown to us, whereas the aspirations of the framers are perfectly well-known to us.

“Conservative judges routinely make bad rulings, actually driven by ideology rather than original meaning, which will be obvious to you as soon as I recite some of the outcomes they have produced.

“Liberal judges, equally obviously, make good rulings, driven by the framers’ aspirations rather than ideology, which I will again prove to you by reciting some notable outcomes for which they were responsible.

“Oh, did I mention that the perfectly knowable aspirations of the framers, hidden just behind the impenetrable words they wrote whose meaning is unknowable, are best fulfilled by an empathetic, that is, liberal approach to modern realities?  Well, they are, because I say so.”

I begin to understand why some of the law faculty at Chicago were willing to offer a permanent position to part-time lecturer Barack Obama, despite his evident lack of scholarly accomplishments.  What the hell, they must have said to themselves–he’s bound to be at least as good as Stone.



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