Hurkyl
Staff Emeritus
Science Advisor
Gold Member
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Can you show me where he used words to that effect? Given the structure of his article, it looks like what he's actually doing is providing an example ofruss_watters said:7. Case 1: The Pentagon Papers.
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Souter argues that this is an example where the "faithful reading" model fails and one that critics would call "judicial activism".
- constitutions have to have a lot of general language
- the Constitution contains values that may well exist in tension with each other, not in harmony
- the facts that determine whether a constitutional provision applies may be very different from facts like a person’s age or the amount of the grocery bill; constitutional facts may require judges to understand the meaning that the facts may bear before the judges can figure out what to make of them
- A claim is made in court that the government is entitled to exercise a power, that is set out in the terms of some particular provision of the Constitution.
- The claimant quotes the provision and provides evidence of facts that are said to prove the entitlement that is claimed.
- Once they have been determined, the facts on their face either do or do not support the claim.
- If they do, the court gives judgment for the claimant; if they don’t, judgment goes to the party contesting the claim.