You Want It, You Got It: My Advice for Judges (For What it’s Worth)

Eric remains insistent .He wants to know what I would tell judges about how to decide casesconsistent with my views of the living constitution. As describedearlier, I think that living constitutionalism is a theory about the legitimacy of the constitutional system as a whole rather than a theory that secures legitimacy by instructing judges to decide cases this way rather than that way .But Eric is certainly right that this emphasis does not exclude thepossibility of giving judges general forms of advice as participants inthe legal system. It’s just that I don’t think this sort of advice doesmuch good for judges who are already well socialized into themainstream of legal culture, and these are about the only sort ofpeople who tend to get positions as judges in the first place. But Ericwill not be denied: he wants an answer, so I guess I have to give him something .

Nevertheless,I should warn him that my advice for judges is, I fear, rather boringand humdrum; worse yet, I doubt it will help any judge decide anydifficult case, for it will prove indeterminate in a wide variety ofsituations. I do wonder whether it will satisfy Eric:

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