New parlor game. Name a Supreme Court case in which constitutional history was determinative.
.@barryfriedman1 do you mean WAS determinative or was CLAIMED BY THE JUSTICES to be determinative?
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@barryfriedman1 Different: Breyer J said in NOEL CANNING arg he couldn't find history supporting recess appointment as tool of executive. -
@Profepps Is different. If the burden rests on those who must prove history determinative it will rarely be met. Ergo the point. -
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@barryfriedman1 has anyone in our lifetimes said anything new about the reason why the Constitution is binding? -
@Profepps Even if they have it gets more and more remote from how we actually govern ourselves. Almost an inverse relationship at times.
End of conversation
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@barryfriedman1@profepps Plaut v Spendthrift Farm? Marsh v. Chambers? Burnham v. Superior Ct.? Murray's Lessee? Texas v. White? -
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@barryfriedman1@crescat case study: do we really think that the "history" cited had any effect on EITHER the BOWERS or LAWRENCE outcome?
End of conversation
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