Correct me if I'm wrong, but are you advocating for a "group rights" interpretation of at least some of the Bill of Rights? If so, I'm not sure that thesis can be sustained historically, philosophically, or politically. If I'm wrong, then please flesh out the argument, because what I discerned from the post was clearly a anti-individual right construction of at least the 1st, 4th, and 5th Amendments.
I tried not to ramble, but I'm hoping that y'all can help me flesh-out the ideas. I think the answer to your question is "No."
I am NOT claiming that the Bill of Rights exists to protect society's rights as a whole or even communal rights within that society. The plain words and the Fed. papers make plain the Framer's intent to protect individuals from Govt. intrusion.
I see an important shade of difference though between the way the Framers used the Bill of Rights (BOR) and the way the Court has used them since 1960.
Prior to 1960, it appears that the polity and the Court saw the 4th and the 5th amendments as a critical protection of private interests from govt. intrusion, not sanctioned by the polity as a whole. (My argument that the permission of invasion of rights on others endangers my own security of rights was an attempt to frame this idea.) There seemed to be an acknowledgement that once an individual's conduct violated the generally accepted mores, the protections of the 4th and 5th ceased.
From Griswold to Lawrence though, the Court seems to be saying that individuals possess a right to that ALWAYS trumps the social mores unless the state can meet the nearly impossible burden of Strict Scrutiny. I see this as different in that this unfetters the BOR and leaves society with NO intellectually defensible right to control the behaviors of others.
Is this making any more sense?
Yes, much more sense, at least to me. Let me think more about this idea and I'm sure I'll have comments at some point.
Isn't it the incredibly high standard, and justifiably so, for an "intellectually defensible right to control the behavior of others" that underpins the need for strict scrutiny? Social "mores" that would otherwise become law or defacto law must be of the nature that the behavior being restricted is of the nature that, if continued, it would have a direct negative effect on the "group." In other words, to the extent that laws restrict behaviors that are wholly individual and do not have any cognizable effect on others (except for their distaste therefor), i.e., the examples you cite, sodomy, pornography, and I would add gay marriage to that list, the cannot, and should not, overcome strict scrutiny and are otherwise not "intellectually defensible" insofar as they are restrictions upon others' behavior.
Repeal- Where does the "direct negative effect" on society bar come into play in the Griswold to Lawrence line? Maybe it is better to cede the question to Scalia in Lawrence. Scalia asks what the intellectual underpinnings for rejecting a list of "evils" would be. It is a good question for, if you will excuse the bluntness, if there are no grounds for rejecting those evils in this line of cases, either the reasoning of the Line is wrong or we need to substantially overhaul our society.
Not to put too fine a point on it... But, if society has no right to control the behaviors of its members unless those behaviors have a directly attributable harm, then I have to wonder if we are not embrassing a call to anarchy.
So long as we're being blunt, my point was to say that the society--ours specifically--has no right to control the behavior of its members simply because it does not like said behavior if that behavior does not affect society. For contrary example coming from me, I, like many others think it is absurdly ludicris and offensive(for lack of a more emphatic description)to hunt forest animals with automatic weapons (kinda takes the sport out of it), but it is merely something that bothers me or that I otherwise find distasteful.
There's a difference, though, between whether government can or should regulate a behavior. Lawrence comes to mind as a perfect example of this. It's more than just a bit silly for the state to ban ceretain sexual acts, but there's nothing in the federal Constitution that says they cannot do so, and the decision reached by the Court was an overreach.
That's the gist of most conservative complaints with the Courts. Absent a clear mandate of power to the federal government (as was arguably the case in the Oregon decision last week), the states have a broad range of pwoer to regulate behavior. The Bill of Rights exist as a protection against the intrusions of the federal government, though the 14th introduces more specific wanrnings (for lack of a better term) to the states.
As for the lengths to which a state should interfere in private actions - I think there has to be a careful examinaition of whether a certain action adversely affects the larger community. It is a legitimate discussion, and I would not lay down a general rule. That's my major beef with libertarians - and really any ideologue, but that's a subject for a future post I have been meaning to put up when I have time.
I understand the argument.
It is satisfying to reduce the question to whether a particular behavior has an immediate negative effect on others. We can simply look for affected parties and throw out any case that doesn't meet our tests.
How very Tort Law.
The problem is that this answer doesn't address the concern. Surely you are not arguing that there is NEVER a time in which the will of the many outweighs the will of the few or the one? Pre-Griswold, we had an answer to this. Now, we do not. Or, more correctly, I do not recognize the answer in this line of cases.
DS, I assume that question was posed to repeal, not me. If it was, then no, I definitely wouldn't make that argument.
Paul- I have to remember to identify the person that I am responding to. Yes, I was responding to Repeal.
The fact remains were largely talking about social behaviors that people--in fact large numbers of people--may find distasteful. It's not about arguing that there is "never a time that the will of the many outweighs the will of the few or one", but about the fact that the "will" of the many in these instances is merely their disdain for behaviors--or more to the point, the individuals or groups thereof engaging in those behaviors--that have absolutely no effect on them. A noise curfew, for example, puts the will of the majority over those individuals who, let's say would blast their music at all hours; contrasted with a prohibition on sodomy, for example, the behavior of which has no effect whatsoever on those who seek to prohibit it (and let's be honest, the enlighted TX AG wasn't targeting kinky married couples here).
Repeal- Are we talking ONLY about behavior "which has no effect whatsoever on those who seek to prohibit it"? I'm pretty sure that the reasoning of the Griswold to Lawrence line isn't limited to mere "morals" behavior.
For the the record, I happen to support "civil unions" and see no reason for the state to legislate the majority of the private, consensual relations between adults. To my mind, though, these decisions are inherently political and majoritarian. However, it is beholden on the parties who wish to engage in behaviors, that are generally disfavored, to convince the majority, that the status of those behaviors should change. We get a very different result if we attack, even the dumbest of "morals" laws, through the courts.
My concern is that the attack against "dumb" laws cannot be stemmed when it is applied to other areas of social mores. I do not understand the logic of Griswold to Lawrence to have any intellectual underpinnings that let the state regulate areas of personal life.
So, again, I ask the question of what, if any, mechanisms exist in the Griswold to Lawrence line to address the Scalia "evils" cited in the dissent. If, between the TPS posters and readers and among all of the persons in my classes and profs, we cannot answer that question, then I must conclude that the Lawrence majority has done something aweful.
Ok, I'm going to go out a bit on a limb and say that the "mechanism" that DS is seeking is inherent in the various rationales that the Court uses in deciding many of these types of cases. Con Law scholars and students are all taught and to some extent have to use the various standards of review, rational basis, intermediate scrutiny, and strict scrutiny (for what it's worth I include a fourth, which was taught to me as "rational basis with teeth," but there is considerable debate about whether this level actually exists, or is just another form of intermediate scrutiny).
I think it's fair to say that many people consider the laws at issue in cases like Griswold and Lawrence to be both stupid and unnecessary. Roe and other social mores cases not so much agreement, so we'll leave them aside. The question that I think must be asked is on what interest is the state seeking to protect be enacting these types of laws? The answer to that question serves as your mechanism for preventing the "parade of horribles" that Scalia suggests in his Lawrence dissent. It is difficult to argue that the state is protecting any sort of legitimate interest in preventing married persons from having access to doctor prescribed contraception. (Griswold) Similarly it is difficult, for many, to accept that the state has any legitimate interest in regulating the kind of sexual behavior consenting adults engage in while in their own homes. (Lawrence) (another aside, people, especially those opposed to the decision tend to forget that the law at issue in Lawrence was blatantly a violation of equal protection. The exact same acts that were prohibited for homosexuals were perfectly permissible for heterosexuals, please, I invite someone try to justify that distinction. Hence, I have always found it legitimate to criticize the opinion for overreaching, as Paul does, however, it is, in my opinion, not legitimate to criticize the result as DS seems to be doing).
It is easier, I think, to discern a legitimate state interest in preventing say incest, illegal drug use, or even bestiality, primarily, I would assert, on public health grounds. Thus, there is little fear that rejecting the state interest in Lawrence would lead to the acceptance of these types of behaviors. Saclia’s parade of horribles is a compelling argument, as are many “slippery slope” types of arguments, however, in this case I don’t think A leads as neatly to B as Scalia and others would have you believe. Rationality, I would assert, and reasonableness is the mechanism. Granted, it’s not perfect and people are going to disagree, but I don’t think all “moral” legislation has been rejected by the Court. The state merely has to find and assert a legitimate interest to protect. In reality, that is a pretty lenient standard that affords the state a tremendous amount of power over each of our day-to-day lives.
Part I.
Mouldy, Please forgive the cut-and-paste that I used to carp together your thoughts. If I corrupted your line of reasoning by so doing, please let me know.
“I think it's fair to say that many people consider the laws at issue in cases like Griswold and Lawrence to be both stupid and unnecessary…. It is difficult to argue that the state is protecting any sort of legitimate interest in preventing married persons from having access to doctor prescribed contraception (Griswold) [or] that the state has any legitimate interest in regulating the kind of sexual behavior consenting adults engage in while in their own homes. (Lawrence)…[I]t is… not legitimate to criticize the result as [I] seem to be doing.”
I am not criticizing the result of these cases. Contraception, the reading of lewd materials, sodomy, homosexual intimacy, and, even, bigamy don’t strike me as areas that the state should regulate. I think that the vast majority of Americans agree with those views and, in one sense, Lawrence is redundant to the political process that had already all but eradicated state regulation of intimate personal behavior by the time that it was decided.
I am a “Traditionalist” and “conservative,” but not inherently oppressive. These are “morals” questions and opposing opinions as to their “rightness” and “wrongness” are deserving of respect, even if I can’t agree. It is now, and always was, “dumb” to write laws that we had no intention of enforcing or that had no practical means for doing so. However, these are questions, in my opinion, for the society to work out through a democratic process.
As for the state “interest” in regulating morality, that’s the real meat of your response, isn’t it?
Mouldy- Part II.
“[T]he ‘mechanism’ that [I am] seeking is inherent in the various rationales that the Court uses in deciding many of these types of cases…. various standards of review, rational basis, intermediate scrutiny, ‘rational basis with teeth,’ and strict scrutiny…. The question that… must be asked is on what interest is the state seeking to protect be enacting [mores] laws? The answer to that question serves [the] mechanism for preventing the "parade of horribles" that Scalia suggests in his Lawrence dissent… Rationality… and reasonableness is the mechanism…The state merely has to find and assert a legitimate interest to protect. In reality, that is a pretty lenient standard that affords the state a tremendous amount of power over each of our day-to-day lives.”
I must have missed the application of Lochneresque tests to this line of cases. It is not so clear to me that this is what the Court is doing. Is it really that simple? We simply take the state’s interest and line it up against the individual liberty interest? Whichever one is “weightier” wins?
If it is this simple, then my ConLaw profs have done us a great disservice by introducing the material as complex and fundamentally different from the application of Commerce cases. At the risk of being flippant, am I missing part of your argument about the application of tests?
Furthermore, I thought that this line of cases relates to a “fundamental” liberty interest. Isn’t this, by definition, subject to Strict Scrutiny? If so, how can the state hope to meet that burden on, for example, adult incest? Certainly two competent, adult persons can decide to use contraception or abortion to prevent the health-problems associated with close-DNA transfer. Using this example, from Scalia’s “slippery slope” argument, how can the state meet the requisite test?
If the state has no reasonable prayer of meeting that standard, how can we call that burden a “lenient standard that affords the state a tremendous amount of power over each of our day-to-day lives.”
Finally, not to overstate the relevance, “Rationality… and reasonableness” are merely value judgments with no greater value because they originate in the Court than because they originate in the Executive or Legislative branches. In fact, I would go further to say that the views of the majority of the body politic are inherently of greater value than the opinions of the few justices that render decisions on “mores” statutes. If, at the end of the day, the only way to limit the “horribles” is through reason, then putting the “right” Justices in is the whole ball game because the reasoning and tests are only so much smoke and mirrors.
Have I missed something?
DS,
In fact, I would go further to say that the views of the majority of the body politic are inherently of greater value than the opinions of the few justices that render decisions on “mores” statutes.
I would most assuredly disagree on this. The raison d'etre for the judiciary is to act as a check on unfettered majoritarian rule, which scared Madison and the other founders witless.
The idea is that the buck has to stop somewhere. If it stops too much with judges, we have the risk of judicial tyranny. If it stops too much with legislatures, we have majoritarian abuse. I'm more comfortable with the former than the latter, for several reasons: the latter has historically done a helluva lot more harm, both qualitatively and quantitatively speaking (mob rule seems a lot more frightening to me than a few judges who lack any executive power whatsoever). Other reason is because I think a strong case can be made that that is the way Madison intended it to work. Judges were to be the final arbiter because it was to that body that Madison charged the responsibility to curb the excesses of the majority.
Paul and I have been having a discussion on this point in the comments at SA.
In answer to your question regarding the application of the various standards of review, my response is yes, it's that simple at least in part. The problem is that such a characterization opens the door to the Lochner critique that you espoused. Thus, there is a strong tendency, in my opinion, to try to obfuscate the holdings, thereby making them more complex than they seem. On the other hand, I do think that I may have oversimplified my case just a little bit. There is, I agree, and element of fundamental rights in the privacy cases, which is why I think they generally are dealt with in a manner that seems more like strict scrutiny than anything else. That said, you’ve hit upon the general “problem” with substantive due process (SDP), and one that conservatives especially have done a very good job of pointing out. Namely, SDP is a “legal fiction” which, in the opinion of many conservatives, does little more than cloak the political preferences of the justices in the rule of law.
Now being of the Cardozo-inspired school of “legal realism” myself, I don’t personally have as much of a problem with this as do my conservative friends. In my opinion, I think you can develop a coherent jurisprudence based on the notion of privacy and SDP, but it is not easy and it requires the acceptance of some concepts like unenumerated rights that many people feel are “extra-textual” and, therefore, outside the realm of the Constitution. I for one have always admitted that my own “constitutional theory” would allow for many decisions that I would find personally and politically distasteful, but that is a price I have to pay to achieve what I think of as a Constitution that is inherently open, flexible and allows for its principles be applied in a manner that is consistent with the context in which it is being interpreted. Obviously, I’m not a textualist or an originalist and have no qualms arguing that those are far from the best means of dealing with the Constitution. Does the Constitution protect a “right to privacy,” in my opinion, most defiantly. What does that right encompass? Well, that’s the complex question, that depends in part on the context and set of facts before the Court at any given time. As I said in the previous comment, I think it includes things like contraception, abortion, and consensual sexual acts, but arguably does not include things like incest or bestiality. How do I draw these distinctions, I do it on the basis of governmental interest, others may use health and safety, while still others might use a more flexible societal temperature construction similar to the test currently used in 8th Amendment jurisprudence. If you’re looking for an overall unifying principle that binds the cases from Griswold to Lawrence, I’m afraid you’re not alone and I don’t have an answer to that one, at least not a satisfying one.
"Does the Constitution protect a “right to privacy,” in my opinion, most defiantly."
I assume that by "defiantly," you meant to type "definately." (Though, there is something wonderfully and refreshingly honest about the way you stated it.)
I'm at work and will take up your response later. I think I need to re-read Lochner first.
By-the-by, I am, indeed, trying to connect the line because I can't imagine how to anal. a case on the exam if I can't do it with extant caselaw.
Oops, you're right, I meant definately. Oh well, typos happen, though probably more often to me than anyone.
Mouldy- In line with your reasoning...
Meyers v. Nebraska notes that the 14th "denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursue of happiness by free men." Thus, it seems that SCOTUS drags common law into Constitutional law through the 14th. (I hadn't picked this up before.)
Further, "The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect. Determination by the Legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts." No references in Meyer about the Stare Decisis pedigree of that statement, but I think the Griswold to Lawrence Line is not cognizable b/c it is an improper isolation of caselaw. Griswold isn't the start and, treating it as such, confuses the situation.
Finally, "the state may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally... but the individual has certain fundamental rights which must be respected..." Which takes us back to the undercurrent of moralizing that the Court makes in Griswold to Lawrence.
The state can regulate morality (Meyers) but not this morality (Griswold to Lawrence).
Do I have your argument now?
TP- There is far more to the argument above than ConLaw, but does this address the ConLaw part of the discussion?
DS,
Sure, it "addresses," it, but I'm certainly not going to say that I completely agree with your take on it. I think the notion of (state) majorities enacting statutes based nothing more on their own perceptions of morality would have frightened Madison, among others, witless. Obviously, most all legislation enacts some kind of moral preferences. That can't be seriously disputed.
The trick is the line-drawing -- what kinds of morals legislation is intolerable in a republic? That was, among many other things, what concerned Madison.
TP- I've always had a hard time with Marshall's Federalist approach to Constitutional interpretation. From the very outset, the Court has interpreted Constitutional provisions by analyzing the Federalist Papers and the writings of the "Framers." The problem with this approach is that presents a skewed version of the tumultous Constitutional Convention and ratification process.
Don't get me wrong, I understand "to the victor goes the spoils," but Madison's take on the Constitution is hardly dispositive. Besides, the Constitution has matured to be something very different than it was in 1787.
Your point though, is well taken. Many of the Framers were of the upper-class and landed or possessed of other wealth. They were, indeed, afraid that "pure" democracy would lead to mob-rule and the framework of our Federal govt. and that of most state govts. was designed to prevent such an outcome. This "republican" form of govt. has democratized quite a bit in the last 200 years, but the stated concern is not entirely misplaced.
That having been said, the "Ivory Tower" approach to Constitutional law has significant drawbacks and the balance between that approach and a majoritarian approach is difficult. I like that the Court is detached from the down-and-dirty politics of the other two branches. However, the legislature and executive are entitled to significant deference.
When it comes to morals legislation though, the Court cannot substitute its own moralizing for that of the "people" without consequences. In the case of minority rights, there were few consequences because a, largely, silent majority of Americans were tolerant of the change. Not so with Roe.
It is not entirely inconceivable that the Court could undermine its own legitimacy by refusing to honor the will of the majority. (Roosevelt's plant to pack the Court comes to mind.)
Plainly stated, it is the majority that defines the "culture" and the state, in whatever form, resists that will at its own peril. Since "culture" is, in many ways, a set of mores to which a people claim to adhere, it is right and proper for that people to engrain those sensibilities in law. The Court can carefully mitigate excess, but a direct assault on the culture is a great evil.
It strikes me that I am writing that which is generally believed anyway. Maybe I misunderstood you and am merely "preaching to the choir."
DS,
Madison's take on the Constitution is hardly dispositive
Paul will be able to speak to this issue more than I, but I am of the opinion that Madison's opinion alone is weightier than any other source. The Constitution was his baby, and while it obviously was drafted with the input and suggestions of many great minds, the fact remains that Madison's perspective alone is more significant than most other Framers (alone).
It is not entirely inconceivable that the Court could undermine its own legitimacy by refusing to honor the will of the majority.
Well of course it isn't "entirely inconceivable." It also isn't entirely inconceivable that for the Court to refuse to protect minority rights would result in an essential abdication of the very role for which Madison intended it to serve.
Again, it's all about line-drawing. You and I can speak about majoritarian tyranny vs. judicial tyranny until we're blue in the face, and in the most general sense, we'd both be absolutely right. We simply differ on where we would draw the line.
Plainly stated, it is the majority that defines the "culture" and the state, in whatever form, resists that will at its own peril.
Sorry, don't agree. What precisely defines a "culture" is an incredibly complex phenomenon. We'd need to enlist the aid of some other disciplines -- anthropologists, sociologists, social psychologists, literary scholars, and if we're talking Western cultures, classicists or philologists.
I do not agree that the majority gets to define the "culture." That's far too sweeping a statement.
The Court can carefully mitigate excess, but a direct assault on the culture is a great evil.
Again, this follows only if I accept your very bold claim that a majority gets to define the culture (I'd add that majorities are never monolithic, since the majority on one issue may be the minority on another). As I reject this claim, your conclusion is not persuasive to me.
Whether or not this is "generally understood" is not as obvious to me as it seems to you, and in any case, to paraphrase Russell, general understanding could well be Stone Age metaphysics.
Look, I hear where you are coming from. I just perceive a different role for the judiciary than you do. And I don't think that role is made up out of thin air, either. An active judiciary, a protector of minority rights against majority rule, is much more in line with what Madison seemed to want than a judiciary that perpetually bows to majoritarian rule. JMO.
TP- JMO?- Just my opinion?
I remain unconvinced that the Federalist view of the constitution, and Madison's in particular, represents the totality or even an overwhealming view of the intent of the Framers in crafting the Constitution. With all of the compromise and ratification battles, this seems to me to be a bit of an illustrative fable. That Marshall's approach to constitutional interpretation is the one that continues to dominate the subject is important, but any claim that it represents the intent of the Framers because it won the contest is oversimplified.
That having been said, it almost doesn't matter.
Before starting law school, I identified myself as a "Strict Constructionist" without really understanding what that meant. Now, in year two, I begin to see how truly daft that was.
The Constitution has morphed into a creature that is so very different from that which was intended, even under Marshall's views, that to use it as more than a "blueprint" seems to be a pipe-dream. Answering legal problems seems largely the task of hearkening back to the plain words of law with a particular interpretation that is adapted to the intended outcome. Constitutional law seems little more than this.
We justify the intended outcome by creating a pedigree of caselaw that fits a particular goal and then elevate particular cases that will be uniquely suited to that end. The Court passes up dozens or even hundreds of cases, leaving the subjects without recourse, to bring forward that one case that will make their point. This does not seem, to me, to be a true appellate process.
Is this what Madison had in mind? Do you honestly think that ANY of the Framers thought the Court would end up this way?
This is why I earlier said that it appears that WHO is on the Court is far more important that the caselaw. To my mind, the caselaw can mean whatever the Court wants it to. Since Stare Decisis is, at best, a convenient tool to make their point and, at worst, an inconvenient hurdle to the intended legislating, it is the particular viewpoints of the Justices that matters, NOT THE LAW.
(By-the-by, this goes for every Court that I study, not any particular court. It simply IS and it doesn't matter whether it is right or wrong.)
DS,
We disagree on the significance of Madison. So be it. Suffice it to say that while my perspective may not be wholly accurate, I do not think it an "illustrative fable." That's not really a substantive criticism, in any case, as any argument can be labeled an "illustrative fable."
Answering legal problems seems largely the task of hearkening back to the plain words of law with a particular interpretation that is adapted to the intended outcome.
This assumes, of course, one finds textualism and originalism coherent hermeneutics. I do not. Therefore, I most definitely do not think this accurately describes how most legal problems are solved. Look at Scalia's dissent in Gonzales. J. Scalia may say that he is faithfully being a textualist and a originalist, but even conservatives (like P. Bainbridge) found that claim dubious.
I don't accept textualism and originalism. Why I do not cannot really be addressed in these comments (too much space). But I don't share your view of judicial decisionmaking.
This does not seem, to me, to be a true appellate process.
I am more or less an appellate lawyer. I do not understand why you think discretionary review is not a part of a "true" appellate process. The principle of discretionary review, in some capacity, is as old as English common law itself.
Is this what Madison had in mind?
I'm not sure what the pronoun antecedent of "this" is. If you mean discretionary review, I am reasonably confident that he did have that in mind.
Do you honestly think that ANY of the Framers thought the Court would end up this way?
I doubt even a group of brilliant men could perceive how an organism like a judiciary branch would end up in over 200 years of practice. Those who knew history would understand they could never predict what would happen. (They trusted to Divine Providence, of course, but that's a different issue altogether).
I nevertheless maintain that whatever the specifics, the role I articulate for a federal judiciary as consistent with the Constitution is closer to at least Madison's vision as the role you articulate.
This is why I earlier said that it appears that WHO is on the Court is far more important that the caselaw.
Of course. Law is politics. I never said otherwise.
(And I mean no offense, DS, but most practicing appellate lawyers understand that who is on the Court is far more important than the law).
TP- One of the great and bad things about being a regular on TPS is that the theoretical application of law is all new to me and is not so to the rest of you. My impressions, therefore, are uninformed by the rear-view of greater experience. I hadn’t counted on this when I applied to law school.
I've been rendering legal decisions for more than a decade. However, there is a huge difference between the application of law to applications and intelligence problems and the practice and study of Constitutional law. I am intrigued by the view the practicing lawyers bring to these questions. I am equally fascinated by the historical perspective that you and Paul bring to the equation. Would that I had more time to connect the theory with the historical development.
Beyond a shadow of a doubt, I have bit off more than I can chew on this post.
In the past few days, I have suggested and received pretty solid feedback on about five different aspects of the problem. I appreciate that. However, it has become obvious that my level of knowledge is insufficient to the bold statements made. For that I am sorry. It has been a long time since I was the complete novice in a field of discussion.
One final thought... In reading that which I've written so far, I sound like a kid who has just learned that Santa Claus isn't real. In some ways, law-school is like this for me.
I LIKE the idea that the Framers drafted a durable constitution, that law is a battle between good and evil, right and wrong, just and unjust. Only, it is those ideas that are the fables.
The Constitution was the best compromise that could be reached among deeply flawed groups of self-interested, and practical men. Each legal case is a contest between self-interest and self-interest. There seems to be little room for notions of good and evil in our adversarial system.
The real kicker is that I remain convinced that it is the only system that works.
I don’t feel like I’m any closer to making sense of the areas we’ve covered, but I appreciate the feedback.
Good stuff, DS. I hope you know I do respect you and the perspective you bring to bear, especially where we differ. We may disagree on many specifics, but much of the broader points you made in your last comment I agree with.
On your notion of the Constitution as a product of the Framers' compromises, are you at all familiar with the Aristotelian concept of phronesis, or practical wisdom?
It's one of the major conceptual outlooks I adopt in my clinical ethics training. Sometimes, we have to make the least worst decision. This is also a fundamental tenet of game theory.
Insofar as your point is consistent with these doctrines, which it may be, I think your model of what the Framers did in this sense is relatively close to mine.
DS,
One more point. Reading your statement that
I LIKE the idea that the Framers drafted a durable constitution, that law is a battle between good and evil, right and wrong, just and unjust. Only, it is those ideas that are the fables.
I was reminded of Felix S. Cohen's devastating critique of law, Transcendental Nonsense & the Functional Approach, 35 Colum. L. Rev. 809 (1935). I'm not sure whether reading this article will comfort you or make you feel worse, but either way, it's worth the read.
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