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Coburn v. Kagan, Cont.

How can one fail to say that an act telling Americans what they must eat would surpass the clear limits of the constitutional powers granted to Congress to regulate interstate commerce?

3:45 PM, Jun 30, 2010 • By JEFFREY H. ANDERSON
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Holmes is an apt justice for Kagan, or any likely Obama nominee, to cite.  He was a “legal progressive” and an advocate of “legal realism,” a philosophy described by Karl Llewellyn, one of its leading advocates, as holding that “[a] ‘written constitution’ is a system of unwritten practices in which the Document in question, by virtue of men’s attitudes, has a little influence” (italics in original).  As constitutional scholar Paul Carrese has written in The Cloaking of Power, “The legal realism of Holmes certainly makes judging more important to, indeed essentially indistinguishable from, partisan politics.” 

Carrese adds, “Holmes’s skepticism about any fixed legal principle[s] yields an explicit concept of judicial legislating intended to achieve a new social and legal order, one more attuned to either current majority will or an evolutionary progress of the species.  While legal pragmatists today might emphasize his occasional pronouncements on judicial self-restraint, his bold legal realism in fact envisions great judges as oracles of social and legal progress.” 

That’s not what the Founders had in mind.

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