Stephen E. Sachs (Harvard Law School) has posted Law Within Limits: Judge Williams and the Constitution (NYU Journal of Law & Liberty, Vol. 16, No. 1, 2023) on SSRN. Here is the abstract:
The Constitution of the United States does not have to mean whatever the Supreme Court says it means. Yet too much of legal practice assumes that it does. Most judges are lower-court judges, most litigators focus on lower-court litigation, and most legal education is aimed at lower-court practice — criticizing Supreme Court opinions in class but taking them as fixed on the exam. This focus makes it easy to confuse the law with “lower-court law,” the blend of actual legal rules and intervening precedent that shapes much of a lawyer’s ordinary experience.
Judge Stephen F. Williams did not make that mistake. Over the decades of his distinguished service on the U.S. Court of Appeals for the D.C. Circuit, he was no stranger to precedent or to case law; but he never took them as the sum and substance of the Constitution, either in his judicial service or his nonjudicial writings. Rather, he engaged in the careful consideration of text and history, with an eye to the economic causes and consequences of legal doctrine, and with the intellectual precision and fierce independence of mind familiar to anyone who knew him.
In so doing, he offered both lawyers and judges a model of intellectually serious adherence to law. Judge Williams should be honored for this adherence, for his honesty to his readers, and for his careful appreciation of the limits on his role.
Recommended.