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PHL 227 FINAL STUDY GUIDE - 1 What are Judge Bork's two...

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1 What are Judge Bork's two main arguments for Originalism? Set both of them out, clearly but succinctly. Then, discuss one of these arguments in full: either defend it against the best objections you can come up with or explain convincingly why the argument fails. Argument from the Nature of Law: (1) A law is a rule that cannot be changed except through prescribed procedures (2) In our system of law, laws are changed by new legislation, passed by legislators. Judges are not empowered to change the rules and statutes or the rules n the constitution itself. (3) The rules that judges are not to change are the ones enacted by the legislators. (4) Those are the ones their words would have been understood to mean at the time. (5) Our judges must follow Originalism, if ours is to be a system of law at all. Argument from democracy (1) In a democracy, the people make the laws through their elected legislators (2) The proper role for a judge (including Supreme Court justice) is to apply the laws the people have made (3) This holds true only under originalism. All other theories give judges power to make
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