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79 Responses to “If only Scalia had been right”

1. Brutum Fulmen Says:
   April 4th, 2008 at 3:24 pm

   Scalia’s dissent in Lawrence is, well, interesting–especially his denunciation of the “homosexual agenda” in law schools, etc. In Lawrence as elsewhere, Scalia’s ethical theory ought to be rejected. But his political theory is another matter. I’m not sure the majority in Lawrence “finally made the right call on the archaic sodomy laws”. If the question is whether those laws should’ve been done away with, the answer is of course they should’ve; such laws are evil. On that measure the Court did the immediate “right” thing. But were the sodomy laws were *unconstitutional*? That, of course, depends on one’s political (not just ethical) theory. Who ought to have the final authority to determine a measure’s constitutionality? The legislature (state or Congress) who passes the measure, or the courts? I think left- and/or libertarian-leaners are too anxious to embrace the latter view. What should influence our decision to embrace legislative versus judicial supremacy? One neglected factor is the terms of debate our decision introduces. By acquiescing to courts as the final authority on constitutionality, we are acquiescing to a forum where we cannot address moral merits directly or prospectively. We cannot say an oppressive law ought to be done away with *because it is oppressive*. We have to argue that the oppressive law ought to be done away with because (for example) it doesn’t square with past precedent or the Founders’ intent etc. It makes the task for a citizen seeking change one of influencing the thoughts of judges rather than influencing the thoughts of fellow citizens. That enfeebles public debate.

2. TGGP Says:
   April 4th, 2008 at 3:25 pm

   the nation’s family planning program
   Why does that even exist?

   Isn’t there something in the Constitution called the establishment clause?
   Yes, but I don’t think it amounts to a religious test.

3. Brutum Fulmen Says:
   April 4th, 2008 at 3:28 pm

   “the seedbed of virtue”… creepy.

4. Keith Preston Says:
   April 4th, 2008 at 5:12 pm

   I think we have to look at the big picture on these issues. As recently as the 1960s, there were laws in many if not most states criminalizing abortion, adultery, homosexuality, pornography, miscegenation, even contraceptives. In decision after decision, Loving vs. Virginia, Griswold vs Connecticut, Roe vs Wade, Lawrence vs Texas , etc. these laws have been repealed one by one. Yes, the process has been slow, but unfortunately meaningful and enduring social reform tends to be slow and gradual.

   In the 1950s, homosexual activity was a serious felony and homosexuals could be imprisoned or sent to psychiatric asylums and subject to electric shock and all sorts of vile mistreatment. The idea that gay marriage would someday be a public issue at all would have been laughable. Today, gays are more out of the closet and have higher social standing than ever before.

   Possession of pornography was a serious felony in those days as well. Now it’s on cable TV and the internet and even some mainstream bookstores, even some grocery stores, sell it. Physicians who practiced before the liberalization of abortion law will tell you all kinds of horror stories about the results of botched abortions.

   The fact that gay marriage is an issue at all and the fact that sex ed exists in schools at all shows how deeply ingrained the sexual revolution has become. If we look at the big picture, the culturally libertarian side is certainly winning on these issues.

   I agree there are some serious exceptions. Primarily drug prohibition and the laws against gambling and prostitution. In fact, ending the drug war, repealing victimless crime laws and comprehensive police, legal and penal reform are my favorite causes so far as individual issues of domestic policy go (my main thing is shutting down the US empire and dissolving the US into multiple independent countries). But I think if we look at the big picture things don’t look that bleak at all when it comes to these kinds of issues.

5. Keith Preston Says:
   April 4th, 2008 at 5:51 pm

   Btw, here’s a recent piece of mine on the drug war:

   http://www.lewrockwell.com/orig8/preston9.html

6. Mona Says:
   April 4th, 2008 at 7:09 pm

   Brutum Fulmen :

   Lawrence overturned the 1986 case of Bowers v. Hardwick, the latter of which upheld the states’ anti-sodomy laws as constitutional. That holding tore me apart. For I HATED the result, but could not accept any reasoning whereby the federal govt was authorized to tell the several states they could not broadly criminalize any particular sexual activity.

   In Lawrence, however, TX sought to criminalize oral and anal sex only when engaged in by same-sex couples. That is a step too far, and in my view properly triggers the equal protection clause. And let’s face it, anti-sodomy laws had come to be applied only to gays — a sexual orientation version of Jim Crow. So again, my struggle with the issue was extinguished when TX maliciously and openly sought to apply their law solely to homosexuals.

7. Mona Says:
   April 4th, 2008 at 7:15 pm

   And Paige, about this: …let’s just celebrate our fertility and make babies for Jesus.

   I had my babies for the Flying Spaghetti Monster, as do all we Pastafarians.

   Ramen.

8. Keith Preston Says:
   April 4th, 2008 at 9:14 pm

   The issue of the conflict between local sovereignty and the use of federal courts to eliminate tyrannical local laws is a complicated one.

   The way I approach the issue is to distinguish the present system from an ideal future system. Judicial conservatives who always decry “judicial activism” are hypocritical in that most of them have no problem with the military-industrial complex, central banking, corporate welfare, federal subsidies to infrastructure, foreign aid and even outright imperialism. They want to have states’ rights on morals laws, law enforcement, prisons, perhaps race relations and education and not much else.

   In my ideal America, the federal government would not exist at all. I favor a process of secession by regions and states from the feds, legitimizing the idea of secession itself, followed by secession by cities and counties from states, communities from municipalities, red zones from blue zones, black zone from white zones, etc. until everyone is happy and until every oppressed group has the chance for political sovereignty. The end result might look like the Holy Roman Empire, a collection of hundreds of sovereign or semi-sovereign polities.

   In the context of the present system, I do not favor the extension of the state into any area of life. For instance, I’m against nationalized health care, expansion of the welfare state, expanding the federal regulatory apparatus and other forms of leftist or Chomskyite anarcho-social democracy. However, use of the federal courts and the federal Constitution to strike down oppressive local and state laws I find acceptable, because it eliminates a source of very real oppression for real world people, without centralizing government in a way that significantly alters the overal balance of power. It’s not like the military-industrial complex, the Federal Reserve or federal drug laws are going to go away if Lawrence v Texas or Roe v Wade is overturned.

   Many of the civil libertarian USSC rulings over the past decades have been quite helpful, not just those related to sex and reproduction that I mentioned in my previous post but many others. For instance, in 1972 the Court eliminated the death penalty for non-lethal crimes. Prior to that some states had capital punishment for routine burglary. Mapp, Miranda and other rulings that created the exclusionary rule, the right of the indigent to a court appointed lawyer, the right of prisoners to some basic standard of humane treatment, the right to criminal appeals, the right of the accused to be informed of their legal rights, these things are exceedingly important.

   Race is another issue. I certainly don’t approve of federal courts that have ordered localities to create special voting districts to guarantee a quota of black legislators, or raise taxes or increase welfare payments, or school busing and other forms of social engineering, but something needed to be done about the treatment of blacks in the South under Jim Crow concerning access to taxpayer funded services, reasonable equality of opportunity in state educational insitutions, the right to something resembling a fair trial and so on. I don’t agree with compulsory integration of private institutions and I think that federal civil rights laws and race-based legislation has since gone way overboard, but I don’t know that the old system should have been upheld under states’ rights either when the feds claimed the right to intervene in every other area of society and go fight the war in Vietnam.

   I’m also very much in favor of judicial activism. Judges, police, prosecutors who enforce laws they know to be tyrannical and destructive but do so because “it’s the law” (really because keeping their job depends on it) are simply invoking the Nuremberg defense: “It was my job to operate the gas chambers.”

9. TGGP Says:
   April 4th, 2008 at 9:59 pm

   There’s brief response to the TNR article at Volokh here.

   I argue on behalf of federalism and judicial restraint here. Keith and I recently discussed the merits of the “rule of law”, which I’ll have to make into another post.
   Here it is.

10. Paige Says:
    April 4th, 2008 at 10:17 pm

    Brutum: “We cannot say an oppressive law ought to be done away with *because it is oppressive*. ”

    I guess this is where we differ. I have no problem saying we should do away with oppressive laws. I’m with Kieth in supporting judicial activism. I realize that my support depends on whose stacking the courts…and I’m not advocating a free-for-all throw-your-constitution-out-the-window type of activism. But let’s not forget that slavery was constitutionally protected, though the founder’s did leave some wiggle room for the future generation to maneuver itself into a civil war over the issue. And Roe v. Wade was hardly the product of an originalist reading…it took a pretty broad and liberal construction to come up with that privacy argument. While the states were slowly working their way toward more liberal abortion laws, I’m glad that some good old activist judges hastened the process.
    As far as your statement “It makes the task for a citizen seeking change one of influencing the thoughts of judges rather than influencing the thoughts of fellow citizens. That enfeebles public debate.” I hear where you’re coming from. This is a democracy, but when it comes to laws that are meant to force me to conform in ways that do not directly effect others (H. L. A. Hart v Devlin revisited), whichever is the quickest way to get the busybodies off my back works for me. The ‘tyranny of the majority’ is often democracy’s worst enemy. That said, almost every ‘landmark’ scotus decision that I hold dear has been met with a backlash of mobilization by the opposing side, working feverishly to minimize the damage by chipping away at the decision through statutes both state and federal. It hardly enfeebles public debate to have judges who do not see the constitution as static and are willing to shoot down riduculous, inane, and oppressive laws without a written invitation from the public.

11. Mona Says:
    April 4th, 2008 at 10:38 pm

    Paige sez: While the states were slowly working their way toward more liberal abortion laws, I’m glad that some good old activist judges hastened the process.

    Then you have no principled basis on which to object to conservatives who make it up as they go along. I wish the Constitution originally, or as amended, foreclosed any laws against taking intoxicants or, when terminally ill, being able to choose death by barbiturate. But it does not.

    Roe created the religious right and its political strength. We’ve all seen what that produced. Forcing a political view down the throats of all the people in all states who are “not there yet,” has been a great gift to the GOP.

12. kevin_carson Says:
    April 4th, 2008 at 11:02 pm

    I’m with Brutum on this. I don’t consider the incorporation doctrine of the 14th amendment to be valid. And the danger of relying on judicial activism to expand individual rights is that it weakens the fundamental virtue of a written constitution: its status as a text with some objective meaning that (as Jefferson put it) binds down the government. The whole purpose of a written Constitution is to serve as an authority superior to the government: it’s an act of fundamental law coming directly from the people in their sovereign capacity, that sets absolute limits on what the ordinary branches of government (including the courts) can do. If the courts, a branch of the state, can read any meaning into the Constitution they want, then it ceases to have any meaning as an objective constraint on what government can do. The courts can (and have) just as easily ignore the Fourth, Fifth, and Sixth amendments as they can the Tenth. And if we’re willing to let them ignore the text of the Constitution when it serves to increase personal liberty, it’s hard to make a principled case for their obligation to uphold the Fourth amendment search and seizure protections as written.

    I’d prefer to be able to depend–absolutely–on the protections that are actually there, without worrying about an out of control court deciding to ignore them, and act through the ordinary political process to secure protection for rights that aren’t in the Constitution.

    All that being said, I agree very strongly that the repeal of all the damned bluenose legislation would be a very good thing. I can’t for the life of me imagine why the people in a legislature or city council think it’s any of their business what herbs I ingest or what I do with my genitalia. Actually, I can imagine why, but they deserve an ass-beating for their presumption.

13. Dain Says:
    April 4th, 2008 at 11:12 pm

    “I can’t for the life of me imagine why the people in a legislature or city council think it’s any of their business what herbs I ingest or what I do with my genitalia. Actually, I can imagine why, but they deserve an ass-beating for their presumption.”

    Jeesh, is that ever so annoying. Currently I’m involved in a group project at school wherein we’re supposed to come up with some plan to limit or ban smoking on campus. The argument I’ve heard so far for why it should be banned is, strangely, NOT because it produces second hand smoke but because smoking is simply bad for you. WTF? My insistence that this is frankly none of our business has been percieved as reckless and cruelly indifferent.

    The class title: “Making Public Policy”.

14. kevin_carson Says:
    April 5th, 2008 at 12:45 am

    Turns out Scalia was right after all. Prosecutors, cowed by the new permissive culture ushered in by gay marriage, dropped felony charges against a man arrested for sodomizing a picnic table.

15. kevin_carson Says:
    April 5th, 2008 at 12:51 am

    Dain,

    Don’t even get me started on the smoking ban craze. They passed one in Fayetteville, Ark., when I was living there. Some idiotic group called Youth Can! ran radio ads in favor of the ban. One of them had visitors to a public swimming pool asked if they wanted the peeing or non-peeing section. The visitors asked, in disbelief, “you mean you ALLOW peeing in the pool?!!” The ad illustrated beautifully the mindset of a certain kind of liberal: the belief that people who would normally pee in a pool would be inhibited by the existence of a RULE against it.

16. kevin_carson Says:
    April 5th, 2008 at 12:58 am

    P.S. I should have said above I’m with Brutum and Mona on this, because Mona made the point about the malleability of our civil liberties more coherently than I did.

17. Keith Preston Says:
    April 5th, 2008 at 7:27 am

    This is an interesting question so far as intellectual debate goes, but it’s really a moot issue, because the US Constitution itself really is a dead letter. The federal government that exists today is so far removed from the original structure of government outlined in the Constitution that it’s not even recognizable according to constitutional standards.

    Maybe it would be best if the Courts rigidly enforced the 10th Amendment. They clearly have no intention of doing so just as they have no intention of upholding the 1st, 2nd, 4th, 5th, 6th, 8th or 9th Amendments with any real consistency. In the system that exists today, the federal courts really are the arbiters of social policy and both sides, liberals and conservatives alike, use the courts to get the results they want. I’ve seen case after case where conservative jurists ignored their supposedly beloved principle of judicial restraint when it produced results they didn’t want and I’ve seen cases where liberals invoked judicial restraint if it produced salutory results in their view. In fact, judicial opinions from both sides frequently read like platforms of a political party.

    As one who has considerable experience observing how courts, laws, etc. actually work, I would also say that cases are frequently decided on the basis of things ranging from whether the judge has a hangover or had a fight with his wife before he went to work that morning, the personal relationships between the judges, lawyers or cops, and other human issues that transcend legalese. I’m also skeptical of the view that written laws really restrain those in power. In my view, “the law” reflects the interests of those who hold power at the particular moment. Written laws will be enforced or non-enforced, ignored or upheld, enacted or repealed, according to the wider agenda of those individuals and groups exercising the greatest amount both formal and informal power at the particular moment.

    In essence, what I’m saying is that there’s no such thing as “rule of law” in the real world. There’s only those with more power and those with less power. The law is simply a tool that contending power groups manipulate towards their own end.

    Beyond that, I really would insist that judges who comply with things like federal mandatory minimum sentencing laws and then justify themselves claiming “it’s the law” really do deserve to be left dancing on air.

18. Keith Preston Says:
    April 5th, 2008 at 7:42 am

    If anyone’s interested, this book is a very good analysis of where the logic of “supremacy of law” leads.

    http://www.amazon.com/Nazi-Justiz-Richard-Lawrence-Miller/dp/0275949125

19. Brutum Fulmen Says:
    April 5th, 2008 at 9:00 am

    There are a lot of great comments; sorry I can’t address all of them with the depth I want. Let me first say that I haven’t read the Rosen article and don’t plan to. I’ve never found anything he wrote insightful and have usually found it positively misleading.

    Mona: thanks for reminding us that Roe *created* the religious right position against abortion. In UK, New Zealand and elsewhere abortion is legalized by *statute* and was the result of surprisingly genuine debate in legislature. (I say “surprisingly” because legislative “debate” unfortunately rarely seems genuine. But its possible as these debates show.) The legislative decisions there are generally seen as legitimate as opposed to Roe for us.

    Paige: I agree with you that oppressiveness of a law ought to be sufficient reason to do away with it. When I said “We cannot say an oppressive law ought to be done away with *because it is oppressive*” I meant that *when the judiciary is the final authority on constitutionality*, one (regrettably) can’t argue (as one ought to be able to) that a law ought to be done away with simply because it’s odious. One (regrettably) has to argue indirectly through precedent, original intent, etc. That means that the result one gets to might not be optimal, and it won’t be for the right reasons; and in the future one who wants to change fundamental policy has an incentive to poor time and money into changes judges rather than fellow citizens’ minds. That can’t be good for the country.

    I am glad you mentioned the Hart-Devlin debate. I am a huge fan of Hart’s work. (For those interested in a look at that debate, the following entry is a good one. http://plato.stanford.edu/entries/law-limits/ ) I agree with Hart, and with Mill before him, and Kevin’s spot-on comment: prevention of harm to others is the only reason for which the state may limit my or your freedom. It is indeed none of the state’s business “what herbs I ingest or what I do with my genitalia”.

    TGGP and Keith: I was interested by the post on rule of law. I have a lot to say about that, which I’ll save for another time. I’ll make one minor comment now, on Keith’s opposition to “legal positivism”. Watch out for that term–it’s one of abuse in libertarian circles. The “legal positivism” of the sort Walter Block, Randy Barnett, etc. denounce has nothing to do with the actual view “legal positivism” which is in no way antithetical to a libertarian worldview. For actual *legal positivism* see the extraordinarily informative http://plato.stanford.edu/entries/legal-positivism/ . (While I’m on it: Block’s and Barnett’s culpable and chronic misrepresentation of legal positivism is really inexcusable. It sends the message that libertarians aren’t interested in actually learning what its perceived opponents actually think.) I gather your opposition is to a view of the following sort. “Law qua law is legitimate and ought to be obeyed by citizens.” Of course that view ought to be rejected. It’s not “legal positivism,” which is merely the view that identification of the existence and content of a law can be made without recourse to moral considerations.

    Keith: Your assertions that the Constitution is dead letter and that legalism leads to Nazism are absurd. With respect to the first one: Whether or not the current government resembles *your reading* of “the original structure of government outlined in the Constitution”, the terms of the Constitution frame the debates that take place in government. A judge cannot decide a constitutional case without at least paying lip service to the Constitution–and that need to justify one’s decisions in public in terms of agreed-upon language counts for a lot. (I know that on your “realist” view of law and legal process, lip service and window dressing is all there is. I don’t deny that some, perhaps many judgments, feature some, perhaps a lot of post hoc window dressing. But there are also officials who sincerely take themselves to be in the public service; deciding as they sincerely think is best for all of us.) Your second claim is simply idiotic and I’m somewhat ashamed to take it seriously enough to respond. Let me just say that Nazism is seen by those who value “rule of law” as the antithesis of the latter ideal. Is legalism compatible with evil? Of course. Does it inevitably lead to evil? Of course not.

20. Brutum Fulmen Says:
    April 5th, 2008 at 9:09 am

    Sorry, Keith: I take back “idiotic”. Not sure what adjective I’d go with instead, but please scratch that one.

21. Keith Preston Says:
    April 5th, 2008 at 11:23 am

    Well, I suppose what I’m arguing for is much greater cynicism than what I’ve seen in this debate so far.

    On so-called “legal positivism” I understand the technical differences you’re pointing out. But you seem to understand well enough what I’m referring to, so I’ll leave it at that.

    “Keith: Your assertions that the Constitution is dead letter and that legalism leads to Nazism are absurd. With respect to the first one: Whether or not the current government resembles *your reading* of “the original structure of government outlined in the Constitution”, the terms of the Constitution frame the debates that take place in government. A judge cannot decide a constitutional case without at least paying lip service to the Constitution–and that need to justify one’s decisions in public in terms of agreed-upon language counts for a lot.”

    I’d say that’s a fairly naive view of how “our system” actually works. You can’t reasonably claim that the framers of the US Constitution, whatever their merits, would recognize the system of statecraft we have today as their own. What we have is an empire whose “mother country” operates as a kind of synthesis of fascism, socialism and Jacobin mass democracy, all of which would have been utterly foreign to the pseudo-aristocrats and proto-bourgeoisie who wrote the Constitution.

    I’ll grant you that “The Constitution” is a symbol of cultural authority along with things like the Declaration of Independence or the Bible, even though most Americans probably don’t know the difference between the Declaration and the Consitution (or at least any of its content) and probably couldn’t name two of the first ten amendments. On a sufficiently remote, abstract level, jurists and others may claim “The Constitution” as their authority just as both the Southern Baptist Convention and the National Council Churches claim “The Bible” or “Christian tradition” as their authority, even though it’s obvious both groups don’t take any of that seriously (thank goodness!)

    “I know that on your “realist” view of law and legal process, lip service and window dressing is all there is. I don’t deny that some, perhaps many judgments, feature some, perhaps a lot of post hoc window dressing. But there are also officials who sincerely take themselves to be in the public service; deciding as they sincerely think is best for all of us.)”

    I think that’s a rather naive view of how “public officials” actually think. If you look at the history of US constitutional law, you’ll see that economic law reflects the economic agenda of the US ruling class of the era, and social law reflects battles between contending cultural groups. Right now, the battle is between the post-1960s and pre-1960s cultures, with the former taking relatively libertarian views on sex and reproduction, radical egalitarian views on race and gender, welfarist views on economics and therapeutist views on heath and psychology. They wish to have all this written into law. The other group holds to quasi-Calvinist/Catholic/Victorian views on sex and reproduction, old bourgeosie views on economics, somewhat less egalitarian views on race and gender, and authoritarian paternalism on social matters. They also wish to have their views written into law. Both sides have no qualms about using either legislative procedures or courts or any other method for these purposes.

    Public officials are, at best, like everyone else. They look out for themselves first, those closest to them second, their primary reference groups third, and abstractions like ideologies or “the comon good” last if at all. Their primary concern is to protect their own power, status and economic interests. I would also remind you of Hayek’s observations about the worst getting to the top.

    “That means that the result one gets to might not be optimal, and it won’t be for the right reasons; and in the future one who wants to change fundamental policy has an incentive to poor time and money into changes judges rather than fellow citizens’ minds. That can’t be good for the country.”

    I think one’s as good as another. Most people get their ideas on “right and wrong” from cues taken from leaders, peers, and primary reference groups. Change the opinion of the leadership and the herd will typically follow. I’m with Confucious, Machiavelli, Voltaire and Nietzsche on this one.

    I consider all societies to be in a permanent state of low intensity civil war. Like in a more formalized war situation, those who make the rules are those who have the upper hand in sheer strength. Even in formalized war there are ostensible laws (Geneva Convention, just war doctrine, yadda, yadda). Sometimes some of the contenders might even make a half-assed, peripheral effort to actually adhere to some of this stuff. But you know as well as I do it’s a bunch of bullshit for the most part.

    People fight wars to win. People engage in political, social and economic struggles to win. People go to court to win. Period. For instance, in the secessionist movement I’m associated with, there are people who try to make legal, constitutional or historical arguments for the supposed legitimacy of secession contra Lincoln. That may be helpful as a rhetorical or propaganda tool, but do I really care about any of that? Of course not. I simply want to see my enemies defeated. Period.

    “Your second claim is simply idiotic and I’m somewhat ashamed to take it seriously enough to respond. Let me just say that Nazism is seen by those who value “rule of law” as the antithesis of the latter ideal. Is legalism compatible with evil? Of course. Does it inevitably lead to evil? Of course not.”

    Well, if you think the Nazi analogy is over the top, I would refer you to a second book by the same author I referred you to before:

    http://www.druglibrary.org/schaffer/media/rlmiller.htm

22. Keith Preston Says:
    April 5th, 2008 at 11:25 am

    Sorry, Keith: I take back “idiotic”. Not sure what adjective I’d go with instead, but please scratch that one.

    LOL! No offense taken. I prefer robust argument rather than a lot of pussy-footing around.

23. Dain Says:
    April 5th, 2008 at 11:58 am

    Essentially Keith is making the case for Critical Theory, the idea that so called “rule of law” and “principled government” is merely a mask for class will to power.

    I’m basically with Keith on the ambiguous fluidity of the “rule of law”, but I will say that the significant number of lawyers who more or less get off on the sheer joy of influencing law and the power play involved undermine a kind of binary view of baby boomers vs. the new right (for example). But this would present a public choice problem - or the inefficiences and contradictions of interest group politics, not so much one of class dominance.

    If I’ve noticed anything about the ESPECIALLY educated, they are less motivated by pure ideology and relatively more motivated by dialogue and debate for the sake of it. Many a lawyer are motivated by an ideological disposition to uphold the “rule of law”, and find the challenge of maintaining it, even in the face of their own personal prejudices, to be a kind of wonderful self-flagellation. In this case “ideology” itself is simply a commitment to what both an indignant leftist and rabid rightist would think of as limited government amoralism - otherwise known as…libertarianism perhaps?

    Where “rule of law” probably triumphs is in the low profile stuff. The ability to seek redress in the court for petty property disputes, things like that. It’s the stuff that reaches the USSC that brings with it so much dogma and really underscores the myth of the rule of law.

24. Keith Preston Says:
    April 5th, 2008 at 12:25 pm

    Yes, I think Dain’s analysis is quite correct. I’d agree “rule of law” might mean something in small claims court or run of the mill lawsuits. I think the issue of judges, lawyers, and cops who get into power play for its own sake is what drives much of criminal law and the really ideological/political stuff that the USSC deals with is where, as Dain says, social struggles are really played out.

25. Dain Says:
    April 5th, 2008 at 12:36 pm

    To clarify my previous post.

    It’s true that the educated class is relatively more ideological than the less educated. (Specifically the highly politically motivated, but there’s a definite correlation there with the educated.) So although relative to the public at large the educated are ideological, it can still be true that the educated are not mostly (say, more than 50%) “ideological”, and that most are - to use Schmitt’s characterization of liberals as not taking their own side in an argument - in love with debate for the sake of it.

26. TGGP Says:
    April 5th, 2008 at 12:46 pm

    I consider all societies to be in a permanent state of low intensity civil war
    Sounds like Mencius Moldbug’s view, except he believes it can be ended.

    Many a lawyer are motivated by an ideological disposition to uphold the “rule of law”, and find the challenge of maintaining it, even in the face of their own personal prejudices, to be a kind of wonderful self-flagellation.
    Reminds me of this from Volokh Conspiracy.

27. quasibill Says:
    April 5th, 2008 at 1:33 pm

    I agree with Dain and Keith, and want to merely add that most legal reasoning published in opinions these days is result oriented. i.e., the judge looks at the dispute, determines who he wants to win, and then uses the words of the law to reach that result. In many cases, it is truly blatant - but it really doesn’t matter because most of the public only cares about the result anyway. One need only look at the sorry state of 4th amendment jurisprudence to see how blatant it is.

    The idea that the written law in any way restrains acting human judges is ridiculous. The only thing that restricts them is other judges, and the people with the money to further (or end) their political career. Yes, there are a few principled judges out there, (Kozinski on the 9th circuit is a good example), but they are few and far between - unable to have much impact on issues of import that are decided by appeals court panels that are staffed with those who are best at playing the political game - that’s how they get to the higher courts in the first place.

    And yes, I agree with keith that legalism is a path toward horror. Only by constantly re-mooring the law to morality can the horror be avoided.

28. TGGP Says:
    April 5th, 2008 at 2:40 pm

    I don’t know much about Kozinski, but this doesn’t make me take a liking to him.

    Heather Mac Donald trashes Critical Realism here. I remember a while back finding an interesting comparison of the Crits with Chicago/Posner style Law and Economics, but I can’t remember where it was. In the meantime, here’s Micha Gertner comparing the philosophy of pragmatism to economics.

    I assert that there are no moral truths, so anchoring justice in morality is silly as basing it on God (I assume most of you aren’t believers). Ultimately there are different things different people desire. Law is our attempt to enforce our norms on others and saying law should be moral gets us nowhere. I’m open to contractarian proposals of how an intentional community could come together with rules that work out for its members, but until I’m actually given the option of signing such a contract I will personally ignore any justifications people give for the law.

29. TGGP Says:
    April 5th, 2008 at 3:56 pm

    By the way, Keith, at my blog you’ve been called a poseur. Care to defend your reputation?

30. Keith Preston Says:
    April 5th, 2008 at 4:27 pm

    Well, lol, I’m one of the few people I know of in “anarchist” or “libertarian” circles who ever did time in jail for wacking a plainclothes cop with a metal pipe and sending him to the emergency. Of course, I was really young then, and it was almost a quarter century ago, so maybe that doesn’t count.

    I found that entry on your blog. LOL, what does he want me to do? Go Kaczynksi or McVeigh?

31. Keith Preston Says:
    April 5th, 2008 at 5:41 pm

    “I assert that there are no moral truths, so anchoring justice in morality is silly as basing it on God (I assume most of you aren’t believers). Ultimately there are different things different people desire. Law is our attempt to enforce our norms on others and saying law should be moral gets us nowhere. I’m open to contractarian proposals of how an intentional community could come together with rules that work out for its members, but until I’m actually given the option of signing such a contract I will personally ignore any justifications people give for the law.”

    That’s more or less my perspective as well.

32. TGGP Says:
    April 5th, 2008 at 8:12 pm

    I found that entry on your blog. LOL, what does he want me to do? Go Kaczynksi or McVeigh?
    You can always ask him.

    Out of curiosity, how did your assault on an officer come about?

33. quasibill Says:
    April 5th, 2008 at 8:29 pm

    TGGP,

    I’m pretty close to that position myself - to the extent that I don’t believe in an objective morality. But there are some subjective moral values that are so prevalent that they come pretty close.

    My point about re-mooring is that the law needs to serve the community, not rule it. The community should always be re-weighing the law against their own subjective mores, at every step of the process, however the community ends up creating and enforcing law. Believing that law should be cut loose from such subjective moral re-weighing is exactly akin to believing in God (such a belief system elevates law itself to Godhood).

34. Keith Preston Says:
    April 5th, 2008 at 8:29 pm

    When I was seventeen I was a bodyguard for a drug and weapons dealer who was also a, shall we say, ranking official in a well-known motorcycle club. At one point, some plainclothes piggies showed up at his hotel room demanding entry (they didn’t id themselves as coppers). When entry was denied, they proceded to kick the door in, at which point I knocked one of their rib cages in.

35. Brutum Fulmen Says:
    April 6th, 2008 at 12:22 am

    I stick to my “naive” beliefs that people (including public officials) can and sometimes do act for reasons other than narrow self-interest and that the requirement that public officials justify their decisions as consistent with existing legal materials (including a constitution) is a meaningful and good thing. Are Supreme Court decisions window-dressed politics? Absolutely; they’re light-years from the “rule of law” ideal. But 95% of cases can be handled with ease as falling within predictable patterns of cases by a trial court judge and 99% of cases of course don’t go to the Supreme Court. A huge number of potential cases never even go to trial either because the law is so predictable that the plaintiff would win that parties decide to settle out of court, or so predictable that the plaintiff would lose that lawyers refuse to bring it. The claims by some writers in the “critical legal studies” (they’re referred to as “Crits” but I prefer “Critters”) and “legal realist” traditions, to the effect that because anything can be argued nothing can be law, vastly overstate the problem of law’s underdeterminacy. (I say “some writers” in those traditions because not all writers in those traditions are as incautious as the more famous ones like Roberto Unger in the former tradition and Jerome Frank in the latter. Llewellyn for example explicitly limits his scope to appellate courts.) Do I doubt that personal politics or personal interest influence a judge’s worldview? Of course not. Do I doubt that legal reform is the product of political movement? Of course not. No one need deny either of the last two claims in order to claim as I have that judges are capable of consciously attempting to decide not for reasons of their own personal or political preferences but for reasons they claim in good faith to “find” in existing legal materials. Finally, as for Keith’s idiotic (cheers!) assertion that because the founders wouldn’t recognize aspects of our current constitutional scheme as their own therefore the Constitution is “dead letter”: I reject the premise. The Constitution is not dead letter merely if it deviates in (even significant) aspects from what the founders would recognize as their own. The Constitution is dead letter if it is of no relevance to decisions government officials make. Officials are often called upon publicly to justify their actions as consistent with existing legal materials including the Constitution. That might not be much, but it’s one obstacle to officials doing completely as they please.

36. eclecticvibe Says:
    April 6th, 2008 at 12:28 am

    I just want to briefly mention that Indiana’s House of Representatives refused to take up a constitutional amendment banning same sex marriage, meaning that it’s off the table of going to a vote for at least another two years. This is Indiana, which is VERY conservative. There is some hope!

37. Keith Preston Says:
    April 6th, 2008 at 10:42 am

    Brutum,

    I’m actually with you on this. While I remain a convinced Machiavellian who regards law as merely an instrument of power, I certainly agree we should use the system’s ideological superstructure and institutional mythology to our advantage.

    Take the issue of drug prohibition. Do I care if prohibition is “constitutional” in some abstract sense? No. But yes, for rhetorical, propagandistic, cultural and political reasons, I am very much for attacking prohibition on constitutional grounds. Precedent? There were no drug laws for most of American history and it required a constitutional amendment to enact alcohol prohibition. First Amendment? Drugs laws impedes the right of Rastafarians and Native Americans to practice their religion. Privacy rights? If you can have an abortion or enage in “sodomy” why can’t you smoke weed or crack or shoot dope? Property rights? Drug enforcement involves massive seizures of property through asset forfeiture and home invasions by drug police. Right to life? Even the medical use of marijuana and heroin in prohibited (with some progress being made on marijuana). Eighth Amendment? Is not the mass incarceration of millions for having a drug of choice different from the majority cruel and unusual punishment?

    You get my point.

38. Paige Says:
    April 6th, 2008 at 12:11 pm

    I didn’t get a chance to check in here yesterday because I was traveling but I am glad to see the conversation continuing. Brutum and Mona (and anyone else who has expressed concern over activism in the judiciary), it is a point well taken. I am well aware of my bias towards liberal activist judges. Obviously, if the court loses Kennedy and tilts completely unchecked to the right, my support of activism will quickly morph into a rant against it. I recognize the hypocracy in holding this position. I also recognize that the very point (and beauty) of having a constitution in the first place is to keep the powers that be, including the justices of the highest court, in check. I realize that this is invaluable, and also that my support of judges striking down oppressive laws inherently contradicts this appreciation on many levels. The only explanation I can offer for why I am still comfortable with decisions like Roe and Lawrence, not to mention Brown, is that the laws those decisions addressed were overly invasive. Socially conservative judges taking an activist role (which is not really the oximoron that it seems to be) would be upholding and/or creating laws that enfringe on our civil liberties rather than protecting and expanding them. I realize that trying to have it both ways is problematic and in ways naive, and I offer no remedy to either of these. I just don’t see how we can possibly try to base everything on the founder’s intent and precedent. Are we psychic time travelers who can go back and read Madison and Co.’s minds? Did they intend for women, black people, and non-property holders to ever get the right to vote? Could they possibly have forseen the cultural and economic changes that would take place over the next several centuries? On precedent, is this a completely static thing or is it, despite its meaning and purpose, also evolving? I understand that having unelected, life-tenured judges have the last call on all social issues being debated in the country defeats the purpose of a democracy. I just have a hard time reconciling that with the reality of the conservative agenda and the aggressiveness of it. I feel more inclined to side with Mill in his warning against the majority’s (or better mobilized minority’s) capacity to oppress, and it is disheartening how many issues cannot be directly addressed through a strictly originalist reading of the constitution.

39. Paige Says:
    April 6th, 2008 at 12:12 pm

    Oh, and GO INDIANA!

40. Keith Preston Says:
    April 6th, 2008 at 12:49 pm

    “I just don’t see how we can possibly try to base everything on the founder’s intent and precedent. Are we psychic time travelers who can go back and read Madison and Co.’s minds? Did they intend for women, black people, and non-property holders to ever get the right to vote? Could they possibly have forseen the cultural and economic changes that would take place over the next several centuries? On precedent, is this a completely static thing or is it, despite its meaning and purpose, also evolving?”

    Exactly. What I would really prefer is that jurists rule according to the constitutional interpretation outlined in Lysander Spooner’s “NO Treason”. Not that it would ever happen.

41. mtraven Says:
    April 6th, 2008 at 1:35 pm

    It was I who insulted you (Preston) on TGGP’s blog, but I mostly take it back, your comments here are pretty thoughtful and have a high degree of correspondance to my own views. My initial impression was based on Google-cached pages of your old website which was bright red and labelled “American Revolutionary Vanguard” or some such. You seem to have toned down the rhetoric some, or at least improved the graphic design. Or maybe not, I see that’s still the name of your group. If you aren’t actually leading a revolutionary vanguard, that name is pretentious and has the sound of old-school Communist groups, which is a bad sign in my experience.

    Having lived through the tail-end of the sixties, which involved a lot of ineffectual preening by self-styled revolutionaries, I wouldn’t want to see this very interesting project of building a liberal-libertarian alliance go down that road.

42. Keith Preston Says:
    April 6th, 2008 at 2:08 pm

    LOL! That site is down at present as I’m having it redesigned into a more blog-like site(like this one). It’s still called American Revolutionary Vanguard. The name was chosen years ago for its controversial yet ambiguous sound. Communists? Fascists? Nationalists? It could be any of these when really it is none of them. More like Bakuninists. It really is a revolutionary vanguard, with about 75-100 serious adherents and probably a few thousand fellow travelers. It was originally formed to create an alliance between the libertarian-left and the populist-right, and at present I’m trying to steer things in the direction of Kirk Sale’s pan-secessionist project.

    Here’s a summary of my actual views:

    http://attackthesystem.blogspot.com/2008/01/next-radicalism-right-without.html

    And here’s our forum:

    http://groups.yahoo.com/group/attackthesystem

    I’m really more interested in why you oppose Justin Raimondo than your views on me. Antiwar.Com is a tremendous resource on foreign policy news and commentary and I find Justin to be a very penetrating foreign policy analyst.

    “Having lived through the tail-end of the sixties, which involved a lot of ineffectual preening by self-styled revolutionaries, I wouldn’t want to see this very interesting project of building a liberal-libertarian alliance go down that road.”

    Sounds like you’re talking about the Weathermen.
    But I agree with you. This forum is a very good effort towards liberal-libertarian discussion.

43. TGGP Says:
    April 6th, 2008 at 2:37 pm

    I was wondering what happened to the original attackthesystem.com
    Does it still have your old articles? I think I’ve got some of them at teageegeepea.tripod.com/AgainstPolitics

44. mtraven Says:
    April 6th, 2008 at 3:38 pm

    Your blogspot link does not work.

    I don’t necessarily oppose Raimondo, I just find his style grating and self-important. I’m sure I’m not the only one. His accusations that the Israelis were behind the 9/11 attacks doesn’t help.

45. Keith Preston Says:
    April 6th, 2008 at 4:05 pm

    http://attackthesystem.blogspot.com/2008/01/next-radicalism-rightism-without.html

    See if this one works.

    I think Raimondo’s theory is that Israeli intelligence may have had foreknowledge of the attacks (or at least that something was brewing). As with most theories of that type, my attitude is I’ll believe it when I seen some hard proof.

46. Keith Preston Says:
    April 6th, 2008 at 4:07 pm

    TGGP,

    The old site should be back up soon. The host server is being changed and there were some technical glitches. All the old articles should be there as well.

47. Dain Says:
    April 6th, 2008 at 4:36 pm

    Justin Raimondo is an outrageous personality. It’s great when he’s spot on, but just hysterical when’s he dead wrong.

48. Mona Says:
    April 6th, 2008 at 5:32 pm

    Paige: No, we are not psychic time travelers. But we do know that abortion, at the founding, was a matter of state common law. The Constitution was meant as a curb on federal, not state power. That changed some with the 14th Amendment, but that was all about protecting the rights of the emancipated slaves in states that continued to treat them differentially. (And abortion was becoming criminalized in approximately the same era the 14th was ratified; no one thought they were creating a federal abortion right. The latter-19-century-AMA was actually leading the charge for criminalization based on what was becoming known about the embryo, which is to say, that science was showing it was not inanimate. Prior thereto, common law thought life did not exist until “quickening,” when a woman could feel the baby [or whatever neutral word one prefers, if "baby" is bothersome] kick through the thick uterine wall.)

    Now, I can accept expanding the equal protection clause to other despised minorities when the discrimination is egregious, as it was in the Lawrence TX case, e.g., prosecuting only homosexuals but not heterosexuals for the same sex acts. But the right decision, in my view, is to tell the states you prosecute everybody for that “crime,” or no one. And then to actually do it.

    I don’t see Brown as an example of judicial activism. By the time of that decision is was beyond apparent that “separate but equal” was never going to be equal, and that even attempting that scheme carried forth the “badge of slavery” for African-Americans. Per the 14th Am, Brown has a solid foundation in the Constitution.

    If enough conservative hit the bench, I guarantee you they will want to see the unborn fall within the classes the 14th is meant to protect. My own Con Law prof believed that. Nevermind, again, that no one at the time thought that that amendment spoke even remotely to abortion.

49. Mona Says:
    April 6th, 2008 at 5:35 pm

    Violence against cops.

    Nobody holds more hatred for the drug “war” than I do, and nor is anyone more suspicious of prosecutors and cops who go bad, “testilying,” planting evidence and etc.

    That said, I would not wish to this site become a place where celebration of beating cops with metal pipes and the like is the usual fare in comments.

50. Keith Preston Says:
    April 6th, 2008 at 5:54 pm

    Understood.

51. kevin_carson Says:
    April 7th, 2008 at 12:15 am

    “I just don’t see how we can possibly try to base everything on the founder’s intent and precedent. Are we psychic time travelers who can go back and read Madison and Co.’s minds?”
    –Paige

    Well, the traditional role of the courts is to apply the will of the lawgiver, and to interpret the law in such a way as to reconstruct the will behind the law. And the conventional way of doing this in common law courts is to apply a set of canons of legal construction.

    Two of the most important are:

    1) Starting with the language of the text, you read ordinary terms according to their ordinary usage at the time the law was passed, and read legal terms of art as they were understood by the legal profession at the time; and
    2) Consider the primary evil the law was intended to remedy, as evidenced by contemporary history.

    One thing missing from the traditional canons, as Blackstone stated them, was the legislative debates and other legislative history. The will of the legislator was to be inferred from circumstantial evidence, rather than the explicit statements of the legislator on the floor of Parliament. But that was because Hansard’s first published transcriptions of Parliamentary debates came after Blackstone’s time.

    In the case of the Constitution, the sovereign lawgiver whose will is to be reconstructed is not the Framers, but the ratifiers. And we’ve got enough primary documentation to provide at least a preponderance of evidence for the meaning of various delegations of power (the contemporary history of the period, assorted federalist pamphlets, and the federalist statements in the ratifying conventions). If the evidence is ambiguous, it’s at least sufficient to establish a finite and fairly limited range of possible meanings, from most to least restrictive, and to clearly rule out some interpretations as outside that range.

    And since the Constitution was framed by a gang of lawyers, and the delegates to the ratifying conventions also had a large contingent of lawyers, they probably understood that the language of the Constitution would be interpreted according to common law canons of construction.

    Just to take one problem that’s been especially interesting to me, there’s the “advice and consent” clause of Article II. In the state constitutions of the 1780s, “advice and consent” always appeared in the case of a weak executive: either a plural executive in which the nominal head of state was simply the presiding officer (the literal meaning of the word president); or a weak executive with a privy council attached to his office, whose advice and consent was required for the exercise of his most important powers. And the two cases where the state executive was called a President, Pennsylvania and Delaware, the office was restricted in just this way. That evidence at least suggests that the U.S. President was originally intended to be the presiding officer of a plural executive (the President-in-Senate), or that it was to be a weak executive with the Senate attached as a privy council.

    Just as a side note, all these Unitary Executive wonks who act like there’s some general grant of undefined “executive power” are full of crap. One of the delegates to the Federal Convention, discussing Article II, started by reading Blackstone’s enumeration of the royal prerogative. The delegate noted that every single power included under the royal prerogative was explicitly addressed in the Constitution: it was either expressly granted to the President, or expressly denied to him, or expressly granted or denied to Congress. There was nothing left over as a basis for the godlike powers the Federalist Society types these days attribute to their “Commander-in-Chief.” The office of Commander-in-Chief itself was comparable to a Roman general in the field reporting back to the Senate.

52. P.M.Lawrence Says:
    April 7th, 2008 at 1:41 am

    “Well, the traditional [emphasis added] role of the courts is to apply the will of the lawgiver, and to interpret the law in such a way as to reconstruct the will behind the law” - No!

    Even to think in those terms is to buy into how the debate is currently framed, as though law is given at all, that someone had the right to give it and any discretion that mattered, and the only question is how to implement that. Yet in origin it goes back to discerning what some abstract law is, not to implementing it. That’s why the etymology of judge (Latin: Ju-Dex) goes back to ius-dicare (right/law/custom-say) which is not in the pattern of, e.g., edifice (aedes-ficare from building-make).

    In origin, law does not admit of either a creator or a discretion. What is done along those lines, and is called law, rests on the idea of a delegated authority from some deeper source. There may be discretion within the latitude that that allows, or a personal style in how a thing that must be done is done, but the idea of law has more in common with “law of nature” and a judge’s (original) function has more in common with that of a doctor in diagnosing and prescribing in relation to a patient’s condition; diagnosis may vary either through human fallibility or variant ways of saying the same thing, and prescription through different paths between a starting point (disease) and a destination (health), but neither can vary in the givens they rest on - or they rest on nothing, ipso facto (which, inter alia, is why most state activity does in fact rest on nothing - but I digress).

53. quasibill Says:
    April 7th, 2008 at 7:21 am

    re: canons of construction -

    Give me a line of text, and I can cite a canon of construction for each of two conflicting interpretations.

    re: original intent -

    in the case of the Constitution, the law-giver (ratifier) is the people. The only “intent” that should matter, if we’re assuming this line of reasoning as defensible, is what the general public understood the documents to mean. And on that matter, I can give you a very popular book written by a famous law professor that will make libertarian hair curl with his evidence that “commerce” meant any sort of communication between people.

    Getting back to Paige’s post, I’d say that we all should be thinking about whether we want these people (like Scalia, or further to the religious right) to have a say in how we live our lives. The larger the political body, the more of these people you’re going to find; the more of these people in your political body, the more they’re going to have to say about how you live your life.

    The only defense against this dynamic is to reduce the size of the political body - let them have their theocracy, while letting you have your liberal cosmopolitan democracy.

54. Keith Preston Says:
    April 7th, 2008 at 7:51 am

    I think quasibill has hit the proverbial nail on the head.

    I suspect there is zero chance that the US federal courts or the USSC will ever interpret the Constitution in any way that anyone on this forum would find particularly appealing. Judges are political appointees, chosen primarily for their party affiliation and their acceptability to the ideological and economic interest groups that control the political process. A judge is not some kind of machine that operates some mechanical process called “law”, but a real person with his own professional and economic self-interest, ideological agendas, cultural biases, psychological quirks, character flaws and so forth. Beyond that, there are also the issues of patronage, cronyism, and outright corruption.

    In a centralized mass democracy, with a infinite variety of cultural and subcultural groups, and the state claiming the prerogative of interfering in society at every level and in every area of life, the so-called “law” is at best a more subtle substitute for an all-out civil war, rather than a peaceful process for settling disputes according to some objective or even nominally consensus-based criteria.

    It is for these reasons that I have long advocated the kind of political decentralization and cultural separatism that quasibill is describing.

55. quasibill Says:
    April 7th, 2008 at 8:20 am

    Oh, and I wanted to make another point about Paige’s post with respect to my claims about morality -

    notice how the most well-known part of Scalia’s opinion has absolutely nothing to do with the law, and everything to do with the resulting morality? By and large, judges rule based upon moral interpretations (when they’re at their best - as opposed to when they’re acting on corrupt or crony bases) and their opinions inevitably come back to this grounding, because that’s what the general public connects with. I’d bet less than 10% of the U.S. public has any idea what the underlying legal issues were in the case - but better than 75% have a strong opinion on the result of the case.

    Pretending that there is some objective, abstract ideal that rules the public is just convenient cover for the reality that it is only human beings that act, and therefore rule. Words written on a piece of paper cannot act, and therefore cannot rule - they can be a cause that rallies acting human beings, but they do require the human beings to be more than kindling.

56. Brutum Fulmen Says:
    April 7th, 2008 at 9:04 am

    I agree with PM in strongly resisting Kevin’s comment “the traditional role of the courts is to apply the will of the lawgiver”. That’s a pretty controversial statement, and I think it’s wrong–especially in the case of emergent law such as common law, Kevin’s example. Whether the intent of the legislators is relevant even in the case of enacted law–legislation or Constitution–is also controversial. With respect to legislation I tend to agree with Scalia. Looking beyond enacted text to the individual views of legislators defeats the very point of a legislature enacting as law *text*, which is for it to *displace* the individual views of legislators. To be sure, we often need to attach some kind of purpose to text. But that doesn’t necessitate engaging in counterfactual speculation of whether legislators years ago “intended” (whatever that means counterfactually) legislation about X to apply to Y. We can do that based on our understanding of natural language etc.

    I am constantly amazed at how powerful a hold over American minds the view that the intention of the founding fathers crucially matters is. Libertarians of course love a legal methodology that looks to the thoughts of thinkers who were for the most part more “libertarian” in many respects that today’s public officials. As far as a justification for why we ought to look at original intent or original public meaning, the answer is usually some along the following question-begging lines. “That’s just what it means to do legal interpretation.”

    I wouldn’t follow PM in the view that law *just is* emergent law, that *enacted law* is an oxymoron. Perhaps PM’s right on the original meaning of words, but of course that doesn’t mean we ought to accept those meanings today.

57. kevin_carson Says:
    April 7th, 2008 at 11:03 am

    PML,

    By “traditional,” I meant the canons that were emerging around the late 18th and early 19th century, when the courts were shifting from the concept of law as “found” to a positivistic view of law as the command of a lawgiver. And I should have made it explicit that they were canons for determining the intent behind a *statute*.

    Quasibill,

    I’ve seen a lot of arguments by a lot of constitutional law professors, some of them for some pretty implausible constructions. And that construction of the Commerce Clause is one of them. While there’s a range of disputable meanings of the clause based on the surrounding history, the evil it was aimed at remedying, and the use of language at the time, I would still argue that that range is limited, and some constructions (like the ones you mention) are completely outside that range. Some constitutional law professors’ arguments are more plausible than others’, when evaluated in light of objective historical evidence.

    And the whole idea of a fundamental law coming from the people acting in some special sovereign capacity, and superior to the ordinary political government, would be moot if it could be overturned by a simple political majority.

    Keith,

    I wasn’t suggesting that courts today are likely to do this in any principled or reliable way. Far from it. And I don’t believe the Constitution has any ultimate moral authority. I believe the Federalists staged what was in fact a coup, and I’d much prefer to be living under the Articles of Confederation. But so long as the current government claims to be bound by the Constitution, it’s a useful weapon to use against them. Although the Constitution was in fact a Trojan Horse, and quickly used as such by Hamilton & Co., to the extent that its text carries an objectively verifiable meaning it can be used as a political weapon. My attitude toward the federal government is “All right, you people claim to be bound by the Constitution. Well, by God, so long as you claim to be bound by it, we’ll at least hold you to it until we can get rid of you altogether. And here’s what it’s says….”

58. Keith Preston Says:
    April 7th, 2008 at 11:40 am

    Kevin,

    Yes, that’s my attitude as well. I agree that holding the powers that be to the letter of the Constitution is if nothing else a useful tool in exposing their hypocrisy and insincereity. And by all means I endorse the idea of using whatever legal tools are available for self-defense.

    If I go to court, whether as advocate for some issue, or a regular litigant, or a common criminal defendant, I want my lawyers to use every weapon they can dish out. If appealing to textualism and originalism will influence the court, so be it. If a liberal “living constitution” theory works better, fine. Appeals to natural law, common law, canon law, Aristotle, God, The Bible, The Koran-whatever will work on a particular case with a particular court at a particular time is fine by me.

    I’m reminded of an old episode of The Addams Family where Gomez and Uncle Fester go to court:

    Gomez: I don’t think we can wim.

    Fester: Not even if we bribe the judge?

59. Keith Preston Says:
    April 7th, 2008 at 12:24 pm

    Thinking more about this question of legal realism vs legal idealism or however we would want to frame the issue, I would make a sharp distinction between how to approach the present system and what an ideal future system would look like.

    In the context of the present system, I would approach things by inverting a statement from Karl von Clausewitz. To paraphrase: “Politics (and law) is the continuation of war by other means.”

    When operating within the context of the actually existing legal (and political) system, I think “this is war” is the correct outlook and the only real issue is achieving victory. Win using whatever weapons you can gather.

    As for the question of some alternative system, I am in favor of completely overhauling how law and “justice” is implemented. Some preliminary suggestions:

    1. Repeal non-victim crime laws, either through statutory repeal, judicial fiat or simple non-enforcement.

    2. Expand the right to keep and bear arms and use them in self-defense, whether against ordinary criminals or criminal agents of the state (like home invading police agents).

    3. End bail requirements and pre-trial detention for non-violent defendants. Defendants in a civil case don’t hav