Constitutional omission for everyone to hate

Whenever I engage in brevity, I feel as if I'm leaving something out, which is my way of apologizing for this short post.

Anyway, Richard Epstein contrasts the views of libertarians and conservatives towards the Sotomayor nomination, and said this:

"...constitutional law contains no magic bullet that condemns judicial activism and lauds judicial restraint..."
(Via Glenn Reynolds.)

Utterly true, and I was reminded of unsettled issues in my previous post in which I pointed out that the Constitution is silent on precedent -- a common law doctrine from which derives judicial review itself -- and which we all take as a given. It's a given all right, but who gave it, and why are we bound by it?

Whether federalism is libertarian or conservative is best left to the federalists.

(So is whether the Constitution is fair to both "sides.")

posted by Eric on 06.03.09 at 08:56 AM


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