I would like to make the case for a conservative alternative to originalism. Much of the discussion that has taken place over the last two days has proceeded on the assumption that there are two choices. One is Robert Bork's originalism,1 justified by various values near and dear to conservative hearts, such as the rule of law, continuity with the past, the principle of democratic accountability, and so forth. The other is to flee into the hands of the so-called nonoriginalists, and embrace, to quote Judge Easterbrook quotingJustice Brennan, the judge's "personal confrontation with the well-springs 6f our society."2 My thesis is that there is a third option, which I will call conventionalism.' Conventionalism draws much of its inspiration from the writings of a British politician and man of letters, Edmund Burke.4 I will argue that there is a Burkean or conventionalist approach to interpretation that is distinct from both Borkean originalism and from the various types of nonoriginalism favored in the legal academy, which I will lump together under the label normativism. I will also argue that the conventionalist approach can be justified by the same conservative values-the rule of law, promotion of democracy, and so on-that
{"title":"Bork V. Burke","authors":"T. Merrill","doi":"10.7916/D8S46RKJ","DOIUrl":"https://doi.org/10.7916/D8S46RKJ","url":null,"abstract":"I would like to make the case for a conservative alternative to originalism. Much of the discussion that has taken place over the last two days has proceeded on the assumption that there are two choices. One is Robert Bork's originalism,1 justified by various values near and dear to conservative hearts, such as the rule of law, continuity with the past, the principle of democratic accountability, and so forth. The other is to flee into the hands of the so-called nonoriginalists, and embrace, to quote Judge Easterbrook quotingJustice Brennan, the judge's \"personal confrontation with the well-springs 6f our society.\"2 My thesis is that there is a third option, which I will call conventionalism.' Conventionalism draws much of its inspiration from the writings of a British politician and man of letters, Edmund Burke.4 I will argue that there is a Burkean or conventionalist approach to interpretation that is distinct from both Borkean originalism and from the various types of nonoriginalism favored in the legal academy, which I will lump together under the label normativism. I will also argue that the conventionalist approach can be justified by the same conservative values-the rule of law, promotion of democracy, and so on-that","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"1996-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71368001","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I offer a modest proposal. You can decide for yourself whether it is offered in the spirit of Jonathan Swift,1 or whether I mean it to be taken seriously. The legitimacy of the Supreme Court is widely assumed to depend on the perception that its decisions are dictated by law. This is the central thesis of the extraordinary joint opinion in Planned Parenthood v. Casey,' decided by the Supreme Court at the end of the 1991 Term. The joint opinion observes that the Court's power lies in its legitimacy, and that its legitimacy is "a product of the substance and perception" that it is a court of law.3 Thus, frequent overrulings are to be avoided, because this would "overtax the country's belief' that the Court's rulings are grounded in law.4 Especially when a controversial ruling like Roe v. Wad is involved, a decision to overrule should be avoided at all costs, because this would give rise to the perception that the Court is "surrender[ing] to political pressure" or "over-nul[ing] under fire."6 Such a perception, in turn, would lead to "loss of confidence in the judiciary."7 Translated, the thesis of the joint opinion is that the further a decision deviates from the Constitution, the more important it is for the Court to adhere to that decision, or else the public may conclude that the emperor is wearing no clothes.
我提出一个小小的建议。你可以自己决定，我是本着乔纳森·斯威夫特(Jonathan Swift)的精神，还是想让你认真对待。人们普遍认为，最高法院的合法性取决于这样一种看法，即它的裁决是由法律决定的。这是最高法院在1991年任期结束时就“计划生育诉凯西案”(Planned Parenthood v. Casey)做出的非同寻常的联合意见的核心论点。联合意见指出，法院的权力在于其合法性，其合法性是法院作为法院的“实质和观念的产物”因此，频繁的推翻裁决是应该避免的，因为这将“使国家对法院的裁决是基于法律的信念过度征税”特别是当涉及到像罗伊诉韦德案这样有争议的裁决时，应该不惜一切代价避免做出推翻裁决的决定，因为这会给人一种法院“屈服于政治压力”或“在炮火下推翻裁决”的印象。这种看法反过来又会导致“对司法机构失去信心”。翻译过来，联合意见书的主旨是，一项决定越偏离宪法，法院就越要坚持该决定，否则公众可能会得出天皇没穿衣服的结论。
{"title":"A Modest Proposal for a Political Court","authors":"T. Merrill","doi":"10.7916/D80P0ZMK","DOIUrl":"https://doi.org/10.7916/D80P0ZMK","url":null,"abstract":"I offer a modest proposal. You can decide for yourself whether it is offered in the spirit of Jonathan Swift,1 or whether I mean it to be taken seriously. The legitimacy of the Supreme Court is widely assumed to depend on the perception that its decisions are dictated by law. This is the central thesis of the extraordinary joint opinion in Planned Parenthood v. Casey,' decided by the Supreme Court at the end of the 1991 Term. The joint opinion observes that the Court's power lies in its legitimacy, and that its legitimacy is \"a product of the substance and perception\" that it is a court of law.3 Thus, frequent overrulings are to be avoided, because this would \"overtax the country's belief' that the Court's rulings are grounded in law.4 Especially when a controversial ruling like Roe v. Wad is involved, a decision to overrule should be avoided at all costs, because this would give rise to the perception that the Court is \"surrender[ing] to political pressure\" or \"over-nul[ing] under fire.\"6 Such a perception, in turn, would lead to \"loss of confidence in the judiciary.\"7 Translated, the thesis of the joint opinion is that the further a decision deviates from the Constitution, the more important it is for the Court to adhere to that decision, or else the public may conclude that the emperor is wearing no clothes.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"1994-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71363329","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
ments (pp. 145, 296, 338,353,355, 359, 390, and 391), some actually adopted, others merely proposed and left to perish from indifference (pp. 300, 373, and 379). In consequence, the author repeatedly finds himself involved in discussion of points that lead nowhere and of distinctions that, in the end, prove to be without differences. For example, following elaborate discussion, he is led to admit that in respect of succession as applied to African regional organizations, political interests have voided of juridical content the otherwise significant distinction between real and movable property (pp. 380, 387). One must question the author's assertion that there has been no problem in recognizing succession of international organizations in the case of the takeover of the properties of the East African Common Services Organization (EACSO) by the East African Community. The latter organization was the creation of three independent states (Kenya, Tanzania, and Uganda), whereas the former was a structure created unilaterally by the British Government. The emphasis is on "succession" as applied to the Afro-Malagasy Union (UAM), the Afro-Malagasy Organization of Economic Cooperation (OAMCE), the Afro-Malagasy Union of Economic Cooperation (UAMCE), and the Afro-Malagasy Common Organization (OCAM). Contributions from French authors are extensively cited and quoted, including unpublished lectures (repetitions ecrites), to the almost total exclusion of works in English. Little use has been made of the jurisprudence of the International Court of Justice in the South West Africa, the AngloIranian, and the Aerial Incident cases, and the theoretical underpinnings of the problem are completely ignored. Nor can one share Professor Bastid's enthusiasm for the "meticulous treatment of materials and discussion" and "the care in assembling documentation" (pp. x, xi). A generous indifference to accuracy infuses both the text and quotations from official documents (pp. 32, 71, 77, 173, 195, 337, 375, and 389).
{"title":"An International Rule of Law. By Eberhard P. Deutsch. Charlottesville: University Press of Virginia, 1977. Pp. xxix, 389. Appendixes. Index. $20.","authors":"Peter D. Trooboff","doi":"10.2307/2201524","DOIUrl":"https://doi.org/10.2307/2201524","url":null,"abstract":"ments (pp. 145, 296, 338,353,355, 359, 390, and 391), some actually adopted, others merely proposed and left to perish from indifference (pp. 300, 373, and 379). In consequence, the author repeatedly finds himself involved in discussion of points that lead nowhere and of distinctions that, in the end, prove to be without differences. For example, following elaborate discussion, he is led to admit that in respect of succession as applied to African regional organizations, political interests have voided of juridical content the otherwise significant distinction between real and movable property (pp. 380, 387). One must question the author's assertion that there has been no problem in recognizing succession of international organizations in the case of the takeover of the properties of the East African Common Services Organization (EACSO) by the East African Community. The latter organization was the creation of three independent states (Kenya, Tanzania, and Uganda), whereas the former was a structure created unilaterally by the British Government. The emphasis is on \"succession\" as applied to the Afro-Malagasy Union (UAM), the Afro-Malagasy Organization of Economic Cooperation (OAMCE), the Afro-Malagasy Union of Economic Cooperation (UAMCE), and the Afro-Malagasy Common Organization (OCAM). Contributions from French authors are extensively cited and quoted, including unpublished lectures (repetitions ecrites), to the almost total exclusion of works in English. Little use has been made of the jurisprudence of the International Court of Justice in the South West Africa, the AngloIranian, and the Aerial Incident cases, and the theoretical underpinnings of the problem are completely ignored. Nor can one share Professor Bastid's enthusiasm for the \"meticulous treatment of materials and discussion\" and \"the care in assembling documentation\" (pp. x, xi). A generous indifference to accuracy infuses both the text and quotations from official documents (pp. 32, 71, 77, 173, 195, 337, 375, and 389).","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"1980-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/2201524","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69271060","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Understanding “ The Loop ” : Autonomy , System Decision-Making , and the Next Generation of War Machines","authors":"","doi":"10.2139/ssrn.2043131","DOIUrl":"https://doi.org/10.2139/ssrn.2043131","url":null,"abstract":"","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.2043131","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67877112","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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