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Law Professors Debate Constitutional Analysis At 8th Circuit Judicial Conference

Publication Date: 
August 15, 2008
St. Louis Daily Record/St. Louis Countian
Donna Walter

Professor Pamela S. Karlan is quoted in a St. Louis Daily Record/St. Louis Countian article about a debate that took place at the 8th Circuit Judicial Conference in Chicago:

Law professors Steven G. Calabresi, of Northwestern Law, and Pamela S. Karlan, of Stanford Law School, held fast to their positions on a topic they've been debating since 1980: "Original Intent, the Living Constitution, and How to Think about Constitutional Cases."


Karlan said supporters of original intent don't hold strictly to the ideal they champion. Although they don't admit it, they are interested in consequences, she said.

Karlan used the example of the U.S. Supreme Court's June decision in District of Columbia v. Heller. In that decision, a majority of the court held the Second Amendment provides for an individual right to bear arms.

"All nine judges agree that you can't take a gun into a federal courthouse. Why?" Karlan asked, rhetorically. Following a bit of laughter from the audience, she said, "They care about consequences."

Karlan opened by citing Eighth Amendment cases that provided for the use of the evolving standards of decency to determine whether a punishment is cruel and unusual. But Calabresi distinguished the Eighth Amendment from the rest of the document, saying the cruel and unusual punishment clause is "the most evolutionary clause" in the Constitution.


Karlan noted that federal courts have always used multiple sources of authority to arrive at their opinions, including the Constitution, shared popular understanding, judicial precedent, broad principles and practical consequences.