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Constitutional ConscienceThe Moral Dimension of Judicial Decision$
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H. Jefferson Powell

Print publication date: 2008

Print ISBN-13: 9780226677255

Published to Chicago Scholarship Online: March 2013

DOI: 10.7208/chicago/9780226677309.001.0001

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Making It Up as We Go Along

Making It Up as We Go Along

(p.103) 5 Making It Up as We Go Along
Constitutional Conscience
University of Chicago Press

In James B. Beam Distilling Co. v. Georgia, the Supreme Court rejected the propriety of employing “selective prospectivity” in civil litigation: when in a civil case the Court announces a new rule of law and applies the new rule in that case, it concluded that the judiciary is obliged to apply the new rule to the parties in other pending civil actions as well. Justice Antonin Scalia explained that in his view the employment of selective prospectivity amounts to an unconstitutional judicial exercise of the power to make law. What (if anything), based on the account this chapter gives of constitutional decision, enables us to speak of constitutional law as anything other than a series of decision points with no necessary connection over time? The answer must lie in large measure in the ongoing cultivation of the constitutional virtues, and this chapter argues that it is possible, primarily through the process of public discussion and criticism of the constitutional decisions of officials.

Keywords:   Supreme Court, civil case, litigation, selective prospectivity, judiciary, Antonin Scalia, constitutional decision, constitutional law, constitutional virtues

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