On Constitutional BS Donald L. Drakeman

Some commentators call these post hoc interpretive rationales covert consequentialism. In other words, the ends justify the meanings. But that s just BS. The Court shouldn t spin a story about the Framers or grand theories or the scientific data or the social science statistics if the law is just whatever the justices say it is. We need them to be truthful rather than emulating that Everson opinion, which was nothing more than Wizard of Oz-ian flim-flam: Pay no attention to that judge behind the curtain.

An oft-cited law review article by Cass Sunstein is titled, There is Nothing that Interpretation Just Is. That s only true if we assume that whatever judges do when they are talking about the Constitution is an act of interpretation. But since we know that a certain amount of covert consequentialism is going on, and that prominent legal scholars and teachers are encouraging it, we need to distinguish between whatever the Supreme Court says when it makes decisions and the formal act of constitutional interpretation.

via lawliberty.org

A breath of fresh air, so to speak.