A Judicial Traditionalist Confronts the Common Law

Texas Review of Law & PoliticsVol. 8 Nbr. 2, April 2004

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A Judicial Traditionalist Confronts the Common Law

I. THE COMMON-LAW TRADITION AS CAUSE FOR ANXIETY

I consider myself a disciplined judicial traditionalist. This means, in short, that I view my role as a jurist through the lens of three fundamental principles. The first is respect for the republican form of government assured to us by Article IV, section 4 of our Constitution.1 The second is acknowledgement, in light of the exclusive grant of legislative powers to Congress in Article I, section 1, of the fact that it is the legislature that serves as the People's lawgiver in matters of public policy.2 The third, building on the second, is recognition within the architectural structure of our constitution that, beyond the rights enumerated in the Bill of Rights that specifically protect individuals, public policy is properly a product of the majoritarian process of the political branches of government -the executive and legislative branches.

While the Michigan Supreme Court has the institutional power to invade the constitutional prerogatives of the other branches of government and make the state's policy, we do not, in light of...

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