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November 02, 2007

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Roach

For liberals and realists, law is subordinate to liberalism. The law and any theory of interpretation is legitimate or not to the extent it conforms to liberalism. Its conformity to more prosaic procedural goals of law--regularity, predictability, judicial restraint--is irrelevant. Because for realist liberals the Constitution for them is not law, with metes and bounds and words and fixed meanings, but instead a manifesto, embracing a kind of liberalism, to which all modes of interpretation must repair. If those words taken on their face and plain meaning mean something else, than that something else must take a back seat to the broader liberal goals. This is like a kind of Gnosticism: the real meaning of the document is known to the initiated based on the abstraction from it and the parallel literature (and case law) that advances that abstraction; this parallel constitution triumphs over the document itself. How else can such ludicrous decisions as Wickard and Griswald be explained?

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