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  1. Jay Jones
    June 23, 2024 @ 11:24 AM

    Reading this right now. I’m torn on pragmatism vs. textualism. Having been a judge for sometime now, you have to start somewhere and the text is the logical place. Sometimes the Constitution is quite clear – like how old a person has to be to be a member of Congress. Says right in the text got to be 25 years old. Not hard.

    Sometimes it is not clear, or silent, so what do you do? Right to marry? Right to raise your children? Right to travel. Everyone likes unenumerated rights but Courts have long said the 9th Amendment isn’t a bucket of rights like bobbing for apples; want one, get one if you can. Policy and pragmatism are politicians roles, not judges.

    Curious to see how the obvious (and unnecessary) dicta in Rahami’s multiple concurrences, that is squarely aimed at this discussion, play out long term. The “law trapped in amber” quote from Rahami will be the anchor of textualism’s arguments.


    • davidegrogan
      June 25, 2024 @ 2:49 PM

      Jay – Thanks for your comment. My takeaway from the book is it’s not an all or nothing decision. That is, as a judge, you are free to use all the tools available to you to reach an appropriate decision. So, it’s fine to rely on text, just not to the exclusion of all other tools.


      Dave Grogan


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