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Constitutional InterpretationThe Basic Questions$
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Sotirios A. Barber and James E. Fleming

Print publication date: 2007

Print ISBN-13: 9780195328578

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780195328578.001.0001

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Doctrinalism and Minimalism

Doctrinalism and Minimalism

(p.135) Chapter 9 Doctrinalism and Minimalism
Constitutional Interpretation

Sotirios A. Barber

James E. Fleming

Oxford University Press

Doctrinalists contend that interpreters can avoid the burdens and responsibilities of philosophic reflection and choice in hard cases by reflecting on bodies of judicial doctrines developed through a process of deciding one case at a time. That doctrinalism offers no escape from philosophic reflection and choice is evident in the different interpretations of virtually any long-standing judicial doctrine, like the “separate but equal” doctrine applied in Plessy v. Ferguson and repudiated in Brown v. Board of Education. This chapter shows that doctrinalism cannot avoid controversial moral and philosophic choices in hard cases. The same is true of judicial “minimalism”, a pragmatic variation on doctrinalism whereby judges would narrowly decide one case at a time. The chapter shows that minimalism itself is a form of philosophic approach, or what Cass Sunstein, minimalism's leading proponent, calls “perfectionism”.

Keywords:   Bowers v. Hardwick, deciding one case at a time, judicial strategy, Lawrence v. Texas, perfectionism, Plessy v. Ferguson, precedent, reasoning by analogy, right to privacy, Cass Sunstein

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