Wednesday, December 17, 2008

Two Conservative Judges Challenge Justice Scalia

Adam White writes in the weekly Standard, Wilkinson and Posner, Dissenting. It's a really interesting article about how and why some conservative judges disagree with originalism as pushed by Scalia and Thomas.

"Recent articles by two Republican-appointed judges, however, identify a fault line along which intra-conservative debate could arise. Each focuses on the Supreme Court's recent decision in District of Columbia v. Heller, where the Court struck down the District of Columbia's draconian regulation of handguns by a vote of 5-4."

"But Wilkinson's specific criticisms are overshadowed by a broader criticism of originalism per se: that Scalia's exclusive reliance on originalism disregards a host of other longstanding conservative values, such as 'textualism, self-restraint, separation of powers and federalism as well.' Heller, he argues, 'has left only originalism as the foundation of conservative jurisprudence. A set of reasonable tenets each providing a separate check on judicial activism has now been replaced by a singular focus on original understanding.'"

It's short and pretty accessible.

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