The Spectacle Blog

Re: New York State Court of Appeals Decision

By on 7.6.06 | 3:48PM

Indeed, Dave, two cheers. But not three. This language sounds right on enthusiastic skim but look again and it's all wrong:

"the present generation should have a chance to decide the issue through its elected representatives"

Not only must the present generation have that chance, that chance is not a chance but a certainty. There is no "should" about it, or there is only insofar as what is not unconstitutional "should" not be held to be unconstitutional. The duty is not moral. Even the right answer wrongly derived is to be appreciated on its merits, but I worry when even would-be strict constructionists lapse into normative language -- the flashing red light of which is that bad old chestnut of imaginitive jurisprudence -- "We believe."

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