Although legalists defend strict construction as the democratic alternative because it limits judicial legislating, their real motive, one suspects, is hostility to big government, a creation primarily of legislation.
(Richard A. Posner, How Judges Think [Cambridge and London: Harvard University Press, 2008], 202)
Note from KBJ: Judge Posner is, by all accounts, an intelligent man (some say he's brilliant), but he makes simple logical mistakes. In this passage, for example, he dismisses an argument on the ground that the arguer is improperly motivated. That's a howler of a fallacy. Doesn't Judge Posner see that the very same move can be made against him? Consider:
Although pragmatists [such as Posner] oppose strict construction, their real motive,
one suspects, is love of big government, a creation primarily of
legislation.
Why is only side in this great debate improperly motivated? Either both are improperly motivated or neither is improperly motivated. Surely, Judge Posner would not appreciate having his motives questioned, so why does he question the motives of those with whom he disagrees?
Keith Burgess-Jackson, J.D., Ph.D. 