"In applying principles like 'liberty' and 'equality,' it is essential that courts develop disciplines and limitations that will, as much as is possible, anchor their meaning in some source of authority other than the personal preferences of the judges who happen to be deciding the case. If this isn’t done, then judging becomes indistinguishable from legislating. It is why, for example, many lawyers and judges believe that constitutional provisions should be given their original meaning. The point is not to be ruled by the 'dead hand of the past' but to recognize that it was the consent of a past generation that legitimizes the binding nature of the Constitution. Its meaning should bear some relationship to what they actually consented to."
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Tuesday, July 21, 2015
There's more to the 'Obergefell' decison than same sex marriage
Rick Esenberg at Shark and Shepherd,