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Bench Memos

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Channeling Benjamin Cardozo?



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Over at the American Principles Project, I just posed the following query:

If Judge Sotomayor so admires Justice Benjamin Cardozo, then perhaps she can indicate her thoughts about this view of his:

The great generalities of the constitution have a content and a significance that vary from age to age.  The method of free decision sees through the transitory particulars and reaches what is permanent behind them.  Interpretation, thus enlarged, becomes more than the ascertainment of the meaning and intent of lawmakers whose collective will has been declared.  It supplements the declaration, and fills the vacant spaces, by the same processes and methods that have built up the customary law. (Cardozo, The Nature of the Judicial Process, Yale Univ. Press, 1921, p. 17)

Question: does Judge Sotomayor believe, with then-Judge Cardozo, that constitutional law is so easily assimilable to the common law, as–what modern judicial “realists” would call it–a judge-made thing?  That the Constitution is a living document responding to every age with a different meaning, beyond a minimal core of “great generalities”?



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