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In Praise Of K's
By Pejman Yousefzadeh Posted in Constitutional Law | Law | Originalism | The Contract Clause — Comments (4) / Email this page » / Leave a comment »
Robert Levy bemoans the almost-complete elimination of the Contracts Clause from our Constitutional jurisprudence. And well he should; here is an instance where originalists ought to prefer Thomist jurisprudence to the Scalian variety. Though I do not cover it in my article, one of the salient aspects of Justice Thomas's originalist approach is that he is less willing to heed stare decisis when it runs counter to originalist findings. Justice Scalia, by contrast, is more willing to let faulty opinions stand. In some cases, he may be right and it may be too difficult to put the toothpaste back in the tube, jurisprudentially speaking. But in others, the Thomist viewpoint is the way to go, and too often, Justice Scalia disappoints by not embracing Thomist jurisprudential principles.
In Praise Of K's 4 Comments (0 topical, 4 editorial, 0 hidden) Post a comment »
Ever since Raich, I thought Thomas was better
by ZootSuit
Ever since Gonzales v. Raich, 545 U.S. 1 (2005) I thought Justice Thomas was the superior Justice to Justice Scalia. In fact, even more telling is that Justice Scalia did not join in Justice Thomas' separate dissent in Kelo v. City of New London, 545 U.S. 469 (2005)
Please don't get me wrong. I still think that Justice Scalia is great but I just think Justice Thomas is even greater.
Same here
by tcgeol
Raich was a poor decision by Scalia, and one he knew better than to make. But he is still a great justice.
Pejman,
Nice posting, and
by daithi
Pejman,
Nice posting, and both the articals you referred to in your posting were outstanding.
I really don't understand why more people don't take these court decisions more seriously. It seems to me like they get far more worked up over trivial matters.
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Never heard about the Gold Clause cases in law school. Surprise.
Thomas has my vote for "First Human to be Cloned" just because he's the only Justice who seems willing to overturn the Slaughterhouse cases. And because of how he slapped down affirmative action questions when I heard him speak.