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In Praise Of K's
Posted by Pejman Yousefzadeh on Tue Apr 29, 2008 at 09:57:22 PM EST
Robert Levy bemoans the almost-complete elimination of the Contracts Clause from our Constitutional jurisprudence. And well he should; here is an instance where originalists ought to prefer Thomist jurisprudence to the Scalian variety. Though I do not cover it in my article, one of the salient aspects of Justice Thomas's originalist approach is that he is less willing to heed stare decisis when it runs counter to originalist findings. Justice Scalia, by contrast, is more willing to let faulty opinions stand. In some cases, he may be right and it may be too difficult to put the toothpaste back in the tube, jurisprudentially speaking. But in others, the Thomist viewpoint is the way to go, and too often, Justice Scalia disappoints by not embracing Thomist jurisprudential principles.
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