GOV 312L Lecture Notes - Lecture 25: William Rehnquist, Negative And Positive Rights
4 May 2017
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Document Summary
An objection: when a judge decides a case, he/she effectively makes new law and applies it retroactively in the case before him/her. Morality as a source of rights: political rights are creatures of both history and morality. Judges must make fresh judgments about the rights of the parties who come before them, but these political rights reflect, rather than oppose, political decisions of the past. When a judge chooses between the rule established in precedent and some new rule thought to be fairer, he does not choose between history and justice. He makes a judgment that requires some compromise between considerations that ordinarily combine in any calculation of political right, but here compete. We need to consider the likelihood that old legal language and old legal silences may be. Political animals : can"t account for the groups that form character, competence, and capacity for citizenship.
