Gerry: I’ll also note that not all “living constitutionalists” believe the Constitution to be broadly indeterminate. For example, as Judge Posner (in How Judges Think) describes Ronald Dworkin’s views—I’ll acknowledge that it’s been a long time since I myself have read Dworkin—Dworkin believes “that there is one right answer to every legal question.” So even if one took seriously (as I don’t) Obama’s statement that he believes that there is a clear answer in 95% (or 99%) of all cases, it simply wouldn’t follow that Obama has joined the conservative legal movement (any more than Dworkin has).
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About the Author
Ed Whelan holds the Antonin Scalia Chair in Constitutional Studies at the Ethics and Public Policy Center and is a regular contributor to National Review’s Bench Memos blog.
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