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"Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance."
     -- Joseph Story
     Commentaries on the Constitution of the United States
     Book III, § 1857.

Thursday, August 07, 2003

Eugene Volokh on the Supreme Court taking recourse to the decisions of foreign jurisdictions. This fragment is particularly telling:

Part of the reason for this is that judicial decisionmaking in the U.S. has long been understood as an enterprise where judges try to draw enlightenment from a wide variety of sources (emphasis added).
No, Eugene, the understanding is not that they draw some amorphous "enlightenment"; it's that they draw a full understanding of the applicable law in the case before them. Their enlightenment is immaterial; they can spend all their free time watching Jerry Springer and chugging brewskis in their skivvies if they wish. All that is important is that they fully understand the meaning of the applicable (note that word) law in the case before them, and then apply it.

This distinction sets out what was wrong with the Court's internationalist toot in, among other cases, Lawrence v. Texas: "We climbed the mountain and brought back enlightenment; be damned to the applicable law."

-- posted by Clayton 8/07/2003 10:25:00 PM

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