Posted by: captainfalcon | February 28, 2011


Here’s a famous quotation from Justice Jackson’s concurrence in Youngstown (the foundational case on how to distinguish the scope of congressional power from the scope of presidential power):

Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.

A brief search of the law reviews indicates that this respected quotation has been used in at least sixty seven articles (and in Sotirious Barber’s Constitutional Interpretation: The Basic Questions) to support positions ranging from (obviously) the rejection of originalism, to stocking SCOTUS with politicians. By its success, it has become what it disparages.



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