If I may be permitted to raise a minor quibble with Scott's point: (1) A demonstration of methodological inconsistency is always difficult. Because judges do not articulate their full theory of the law, the methodology of a particular judge must always be inferred. When trying to prove a charge of methodological inconsistency, one must show that no methodolgy that the judge could have held is consistent with all of the judge's decisions--giving reasonable allowance for the possibility that the judge erred in a nonmethodological way--e.g. misunderstood the facts or the law. This is almost always a hopeless task, because there are too many possible methodologies for the method of elimination to applied effectively.
(2) Tribe's Saenz piece does not, in fact, make a charge that individual judges inconsistent. Consider the following passage: Start of quote: Nor do I mean at this point to explore the question whether there is indeed some principled reason to regard the process of making inferences from the Constitution's structure and design as being more appropriate when one derives the details of the separation of powers or of federalism (and then infers the rights of individuals within the system of separated and divided powers from the details thus derived) than when one fills in the details of personal rights that have no particular connection with the institutional and territorial organization of the system of separated and divided powers (but might instead flow no less forcefully from the basic premises and design of an anti- totalitarian legal regime). [FN151] What seems beyond dispute and what is crucial for present purposes is simply this descriptive observation: in the current era, claims of individual rights are most likely to have power and ultimately to prevail if they can be convincingly expressed through the language, and clearly understood through the logic, of such concretely architectural features of the Constitution as the separation of powers or, more to the point here, the federal system of separate, equal, and semi- autonomous states. :End of quote. It is, of course, possible that Scalia is being inconsistent, but there are many other possibilities. Larry Lawrence Solum University of San Diego http://lsolum.blogspot.com Quoting Scott Gerber <[EMAIL PROTECTED]>: > Bobby: > > You're assuming that Justice Scalia is being consistent. Prof. Tribe wrote > a wonderful comment in the Harvard Law Review about the Saenz case that > convinced me (if I needed more convincing) that almost none of the justices > (conservative or liberal) are methodologically consistent. I highly > recommend it. > > Best, > Scott > > Why would a self-described textualist, like Scalia, examine the > constitutionality of a law while admitting that no text is involved > authorizing or prohibiting the law (Printz)? Is it because if a textualist > insists that that when the Constitution is silent, Congress may act, one is > then turning the federal government into a government with unenumerated and > perhaps unlimited powers? > > Bobby Lipkin > Widener University School of Law > Delaware > > ********** > Scott Gerber > Law College > Ohio Northern University > Ada, OH 45810 > 419-772-2219 > http://www.law.onu.edu/faculty/gerber/ >
