People & Their Opinions Flashcards
Vermeule’s definition of originalism
the view that constitutional meaning was fixed at the time of the Constitution’s enactment
Vermeule’s view on the history of originalism to now
It served well for the hostile environment but has now outlived its utility & become an obstacle to the robust, substantively conservative approach to constitutional law & interpretation
Vermeule on originalism v. CGC
Originalism is a positivist approach while CGC is a non positivist approach
Culbreath’s addition to Vermeule’s definition of originalism
the practice of jurisprudence ought to be narrowly constrained by that original constitutional meaning, it claims a strict adherence to the original meaning of the American founding documents
What judge supports original intent originalism?
Bork
What judge supports original meaning originalism?
Scalia
Scalia’s rejection for original intent originalism
Because it allows judges to substitute their own value preferences as the original intent of the drafters
Gregg on CGC v. Aquinas
They do not square because CGC skips over these important nuances and distinctions, that Aquinas makes – such as not legislating all manner of virtues
Culbreath on CGC v. Aquinas
They do square because Aquinas never taught that rulers are strictly bound by the written law, or that the act of jurisprudence – to judge – was limited to the interpretation of law, even though he taught that it was prudent to change the law as little as possible
Aquinas’ connection to CGC
A judge’s oath to uphold the law, should that political system include unjust laws, is not binding in conscience; for an unjust law is not a law at all (quoting St. Augustine)
J. Black on Griswold v. CT
accused the majority of indulging in natural law due process philosophy; he focused in his dissent on unmasking the majorities long discredited “natural law” doctrine
Douglas on Griswold v. CT
said we do not sit as a super-legislature to determine the wisdom, need, & propriety of laws that touch economic problems, business affairs, or social conditions
Pres Roosevelt on Griswold v. CT
criticized the justices for substituting their personal political & economic opinions on the country 9 (disguised as higher law) contrary to the those of the people’s representatives as Holmes did in his dissent in Lockner
How did all of the justices see Griswold v. CT
All justices held the opinion that anti-contraception laws were simply silly/offensive; only difference between majority/dissenters was whether silly/offensive laws were necessarily unconstitutional
George on Griswold v. CT
Judges operating under such duly limited forms of judicial review would not only violate the rule of law, but the natural law itself, if they appealed to natural law—even if they would do so for the sake of invalidating an unjust law that violates a fundamental human right such as state laws allowing abortion
