I am indebted to Professor Christie, not only for noticing my work but also for challenging it in so forthright a manner. He has identified a feature of my thesis that deserves to be a focal point for additional debate. Any reader of my original article who was undecided whether to agree with it ought to be aided considerably in the task of critical evaluation by the exchange Professor Christie has initiated. I know my own understanding of the premises and implications of my thesis has been enhanced by the experience of working out a response to his challenge.
The crux of Professor Christie's critique is contained in the following passages: "The notion I find most troublesome in Blasi's argument is that, in deciding individual cases, courts must constantly keep in mind strategic considerations." "I find it a disturbing suggestion that a person's legal claim should stand or fall, not on the strength of his argument, but on some strategic view taken by the Court or on the background views of some member of the Court regarding what is good for society." I take his claim to be that strategic considerations have no place in the process of constitutional interpretation, or at least that the particular strategic considerations that I think should be taken into account have no proper place. He views the use I make of strategic considerations as inconsistent with "the ideal of the rule of law."
Law | Natural Law | Rule of Law
Vincent A. Blasi,
The Role of Strategic Reasoning in Constitutional Interpretation: In Defense of the Pathological Perspective Comments,
Duke L. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3787