Open Access. Powered by Scholars. Published by Universities.®
- Discipline
- Publication
Articles 1 - 2 of 2
Full-Text Articles in Judges
On Creativity In Constitutional Interpretation, Pierre Schlag
On Creativity In Constitutional Interpretation, Pierre Schlag
Publications
In the present article a particular aspect of constitutional interpretation will be considered. This aspect is called "creative" and involves retrieving the meaning of an object of interpretation. It is with regard to this particular aspect or moment of interpretation that creativity is often viewed as something to be avoided, to be shunned. If the task at hand is to "retrieve" some meaning, then the idea that this meaning can be created, in whole or in part, seems quite simply antithetical to the enterprise at hand. It suffices to note that many jurists and legal thinkers believe that interpretation as …
Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory, Marc O. Degirolami, Kevin C. Walsh
Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory, Marc O. Degirolami, Kevin C. Walsh
Faculty Publications
Judge Richard Posner’s well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its “cosmic” aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson — in the popular press, in law review articles, and in books — have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and …