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What's so great about narrowly following precedent when that precedent is rotten to the core? Since 1937, the Court has sytematically eviscerated key provisions of the Constitution,(e.g., the Commerce and Takings Clauses). So it's hard to be encouraged by anyone who wants to continually reaffirm that grant of carte blanche. Roberts' approach is about as useful as the farmer who slams the barn door shut long after the cow has escaped.

Protogoras may have missed the point.

I humbly suggest he or she click on the paper (PDF) by Pete Boettke and Chris Coyne and see what Frederic Sautet is on about.

I did and I appreciated the points they make and the concepts of the Player v Referee and Student v Saviour.

Great thinking, which I shall comment on Friday in my blog.


I read the paper, which I found quite good. Agreed: the state ought to function as a referee-student, rather than a player-savior. Yet I wonder how this touches my point, which had more to do with the role of the Court.

A large body of Supreme Court decisions has already granted player-savior status to the state. Any narrow adherence to those precedents is still an adherence, which will further entrench the gains won by Progressives over the past century.

Rather than applaud an approach that gives continued blessing to the player-savior model, we might consider a stronger principled activism, as advocated by Randy Barnett and others.


I see the point that you are making; the application of the Boettke-Coyne in your mind is inappropriate, or not a good one.

Possibly not, as the role of economists in the paper was about development; the US Supreme Court is about justice, albeit it crucial to economies, but in a highly developed economy.

I am impressed with the potential application of the Boettke-Coyne model in a wider context. Being Scottish I am less familiar with the operational roles of the US Supreme Court.

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