Balkinization: Legal Scholars Assess the Torture Memos

Comments:

I wonder if the torture memos have prompted any second thoughts from Mark Tushnet, who argued in Taking the Constitution Away from the Courts that the constitutional interpretation from the executive and legislative branches should be given more weight.

On the one hand, it strengthens his argument that conceiving constitutional interpretation as the sole province of the judiciary weakens the perceived responsibilities of the other branches to defend the constitution.

On the other hand, do we really want to give any credit to institutions that are capable of acting this badly? Of course, given the quality of opinions coming from the Supreme Court lately (Cheney), it might not be much better.

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