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Ideological Drift and the Struggle over Meaning, 25 Conn. L. Rev. 869 (1993)


Professor Schauer's essay on constitutional positivism purports to clarify the terms of debate between positivism and natural law. By its end, however, it has become clear that he has been concerned all along with quite different matters. He wonders whether debates between positivism and natural law, formalism and antiformalism, or judicial activism and judicial restraint can ever be settled in the abstract because the political and moral consequences of these stances, programs, and theories change radically over time. Some applaud the "natural law" innovations of the Warren Court while criticizing those of the Lochner Court; others celebrate Justice Holmes' positivism while simultaneously denouncing that of Chief Justice Rehnquist. Formalism sometimes looks good to us, yet at other points in history the rejection of formalism looks even better. Chief Justice Marshall's judicial activism of the 1820s is revered by liberals, while Justice Peckham's deformations of the 1900s are condemned; Justice Brennan's judicial creativity in the 1960s is extolled, while that of Justice Scalia in the 1980s is disparaged.

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