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Strict Construction or Legal Creativity? |
| Section: MODERN THOUGHT / THE JUDICIARY REASSESSED |
| Author: Morton A. Kaplan |
| Publication: The world & I online |
| Issue Date: 1/1/1988 |
| Size: 5,704 Words, 34,491 Characters |
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Judge Richard A. Posner has recently written a powerful critique of Walter Berns' contention that the judiciary ought to use the principle of strict construction in interpreting the Constitution. According to Berns, Judge Posner says, issues of the public good can be decided only with the consent of the governed. Judges are to consider only issues of private right, and even then only the question of whether such rights exist in the Constitution or the law. They may not use discretion or weigh consequences in reaching their decisions.
If Berns truly says this, then clearly he is wrong. Contrary to what Berns says, Posner argues that judges should use evidence creatively in reaching their decisions. Berns' position then is merely a rehash of the view that law is a conceptual system in ...
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...our values will best be protected by institutional restraint and legal craftsmanship. A Court that follows sound rules and procedures, that visibly avoids private agendas, that pays deference to legislative judgment and community standards, and that places its weight against the erosion of established liberties can play the largest role in preserving constitutional order and individual liberty.
(806 of 34,491 characters)
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