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The Democratic ConstitutionExperimentalism and Interpretation$
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Brian E. Butler

Print publication date: 2017

Print ISBN-13: 9780226474502

Published to Chicago Scholarship Online: January 2018

DOI: 10.7208/chicago/9780226474649.001.0001

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Information-Rich Jurisprudence

Information-Rich Jurisprudence

(p.49) Chapter Three Information-Rich Jurisprudence
The Democratic Constitution

Brian E. Butler

University of Chicago Press

This chapter outlines three possible ways to characterize the manner in which constitutional jurisprudence deals with information. First, there are strategies that try to exclude as much information as possible. Information excluding strategies are ubiquitous in legal thought and practice. Here Justice Antonin Scalia’s public meaning originalism is taken as a prime example of this strategy. Another strategy is to include as much information as available. Recently this strategy has been exemplified in Richard Posner’s work on judging. Therein he labels the most honest and effective judge a “constrained pragmatist.” Finally, there is the possibility that courts could be set up to actually help produce relevant information. It is argued that the jurisprudence of democratic experimentalism exemplifies this strategy. Using Scalia’s information excluding opinion in the gun-rights case District of Columbia v. Heller, and Posner’s information including Second Amendment opinion, Baskin v. Bogan, it is argued that information-rich jurisprudence offers a much more effective and sensitive jurisprudential strategy in constitutional interpretation.

Keywords:   Second Amendment, gun rights, District of Columbia v. Heller, jurisprudence, originalism, Scalia, Posner

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