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12/21/2015

John McGinnis on the Judicial Duty of Clarity
Michael Ramsey

At Liberty Law Blog, John McGinnis: More Evidence for the Judicial Duty of Clarity.

In a previous post, I discussed my new paper, The Duty of Clarity. There I show that the original meaning of the Constitution requires a clear violation of its terms before invalidating legislation. But the Constitution also demands that judges use the ample interpretive methods available to clarify the precise meaning of our fundamental law. Both the obligations of clarity and clarification flow from the judicial duty, a duty that is an aspect of the judicial power granted under Article III of the Constitution. 

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Since finishing a draft of the paper, I have come across one more powerful piece of evidence for this proposition. It is widely agreed among early Supreme Court justices that this duty of clarity exists and was binding on them. Nevertheless, I had not previously found any instance in which a justice claimed that the duty was the proximate cause of a refusal to hold legislation unconstitutional.

The case in which the duty of clarity appeared to be decisive was United States v. Ravara. ...