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May 15, 2007


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Den Activist

I think to understand where and why the court acts as it does during any period of time we must understand how current events, trends in or changes in society, and past application of Constitutional law affect those decisions.

I personally believe that if we study the decisions made years ago up until now, taking into account what was going on during the period the decisions were being made, the status or trend in society, and what the law, then we can pretty much can gauge how the opinion would most likely read and the why of behind the thinking.

For example, if justices believe we are under "terrorist" attack, we will see a more conservative approach.

Joan A. Conway

Given the deepth of these thinkers' resources, it is a wonder that they get sidelined by sayers of doom, as they appeared to have been on the abortion issue in order to keep women in possession of their bodily integrity.


I rarely understand Sunstein's entries, or, more precisely, their meaning is often hidden beneath layers of imprecise prose. Has he never heard of a thesis statement and offering proof in support of the same?

If he means to say these "visionaries" were great and their opponents mean and atavistic, he should simply say so. Instead we get gobbeldy gook, e.g., "Some of us believe, in principle, that a minimalist path is usually appropriate, especially on large questions on which the nation is divided." Sunstein inserts caveats for this and any other statement to the point of meaninglessness.

May I remind Professor Sunstein, Constitutional history did not begin in the early 20th Century. The Constitution was written in 1787. It had an august history before the realists showed up, and the Court was a relatively minor player in our nation's history. There were only two major 19th Century Visionaries, Justices Storey and Marshall. And why? Because they were creating major precedent and setting out the role of the court. Like Washington and his impact on the presidency, they could not help but be influential simply by showing up.

But the 19th Century was also peopled by dozens of fairly nondescript and unremarkable, though careful, jurists. A few standout, usually for their forays into attempts at being visionaries, i.e., Justice Taney in Dredd Scott. But that was highly expectional and in relation to a highly exceptional issue. On the whole, both before and after the Civil War, law in those days was understood to be inherently conservative, concerned with precedent and regularity and fidelity to language--over which lawyers notoriously obsess.

But consider the 20th Century visionaries. They ran rough-shod over precedent (Carolene Products), embraced a cynical philosophy that made a virtue of such contempt for traditional notions of legality and legal rules (Griswald, Gold Standard Cases), pursued faddish notions such as government control of the economy and "racial science" (Buck v. Bell), and appointed themselves the force of progress in the nation simply by virtue of a sense of their own superiority (Roe, Brown, Miranda etc.).

From these we supposedly got the civil rights movement, but let's not forget this movement was steeped in popular resistance until it received a democratic imprimatur in the 1965 Civil Rights Act. It's debatable whether Brown did more harm than good. Plus, from these same courts we got the expansionist welfare state of Roosevelt and his successors and the human rights tragedy of legalized abortion.

Now one might think these are good policies, but as the Four Horsemen and a casual reading of the Federalist Papers would make clear: they have no constitutional justification whatsover, particularly insofar as they shift power from democratic state legisatures to unelected and elite (and totally unrepresentative) courts and justices.

These folks--Brandeis, Cardozo, Warren, etc.--were not visionaries so much as troublesome interlopers and revolutionaries, resentful, arrogant, and destructive. The Four Horsemen were right; the realists' innovations represented the effective death of constitutionally limited government and a major and unethical abrogation of power by men whose own character is supposed to be the chief limitation on their abuse of power. But needless to say the character of some of these justices was far from sterling, i.e., "the lawyer for the situation."

Until we return to some notion of correct legal reasoning that does not adhere to some exogenous notion of progressivism or abstract justice, but instead sees itself chiefly as the interpretation of language in light of limited policies naturally intertwined with law itself--regularity, predictability, democratic pedigree, equal treatment of similar situated parties--then anything will go.

Without this change in the ethos of judges and lawyers, Sunstein's concerns for "consolidating the gains" of his radical forbears with a new tune of moderation will just be one more preference among many, no different than some religious fundamentalist's desire to see the 14th Amendment interpreted to enact one or another policy. We will truly have a culture war and law will do little to keep our antagonisms in check.

Insofar as we acknowledge that correct legal reasoning involves the interpretation of language and the imposition on it of a single meaning in a world of multiple potential meanings--including subjective preferences by individual legislators and judges--then there is little way out of pure subjectivism without some resort to rules of linguistic analysis untied to changing mores, policy goals, or competing subjective intentions by legislators and judges. And original meaning--i.e., when a term of art like "free speech" is used, what did it mean when written?--is the most likely way to lend predictability to the law, both by those affected and its authors. Further, it's likely the only way to cabin otherwise unfettered judicial discretion.

In this sense, contract law is a good analogy, because the law imposes upon contracts an objective meaning, i.e., a single meaning based on a variety of interpretive rules, without regard to the ever shifting understandings and intentions of the parties.

As I wrote in response to some similar sophistry written by Cass Sunstein in November 17, 2005 on this very blog:

"The problem with Sunstein's view above is that the legal reasoning of the decisions he does not want overturned out of concerns for radical change were themselves radical and untied to any notion of 'legal' reasoning, i.e., the obvious and infamous sophistry behind the 'prenumbras and emanations' passage in Griswald. Further, in many cases overturning them would simply return these issues to democratic controls; it would not mandate any particular policies.

"But now that this violence to the constitutional order has come to pass, he wants to consolidate the gains of former radical by appealing to a conservatism that his liberal peers were deaf to when Griswald, Roe, and the like came up."

In other words, I'm saying Sunstein can't be trusted. His very epistemology in legal realism makes it so. And, further, his selective concern for traditionalism makes it obvious his real concern is with so-called progressive policies, not the integrity of law and legal reasoning as important ends in their own right.

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