Friday, January 10, 2014
A NEW INTRODUCTION TO AMERICAN CONSTITUTIONALISM (the book to your right!)
It has been said that in constitutional law it takes a theory to beat a theory. Larry Solum has so said periodically at his wonderful Legal Theory Blog. I don't know the origins of this but perhaps it comes from the sciences, the natural not the social. Alas, law is not a science although in the 19th century efforts were undertaken to treat law as a science. A theory in constitutional law cannot be tested in the manner of the scientific method. Just look at the proliferation since the 1980s of theories in search of the Holy Grail of constitutional interpretation/construction. And in recent weeks the legal blogs are burgeoning with the battles between originalism and non-originalism. In particular, Eric Posner's new blog and its posts on a course being offered by him and Will Baude on originalism. Will Baude at VC posts his comments and the Originalism Blog throws in its two cents. A recent post of Posner's focused on history. The role of history is addressed in great detail in Jack Balkin's article in Fordham LR last summer. I'm still laboring through Jack's article not because it is a tough read but because of vision problems. Law office history is included in discussions. How well trained is the constitutional scholar in history as compared to a professional historian? Does a "New Introduction ..." require a strong historical background? Keep in mind that lawyers are adversarial in practicing their profession, whereas (in my understanding) professional historians are not. Constitutional scholars seem to "discover" new history all the time, including members of SCOTUS. With each new discovery a new theory is presented.
As to Prof. Graber's:
" ... this is the first book that explains why all you need to know about constitutionalism you could have learned by going steady in the 1950s. "
my time in the 1950s was spent in college, law school, fulfilling my draft obligation (post-Korea) and starting to practice law. There was no time or money for going steady. And the law indeed was a jealous mistress. So I guess I have to read the book.
"For the past hundred years or so…" within the bubble.
Is it a recent discovery that the rule of law is nonetheless the rule of men? Law is politics filtered by touchstones, sentences written down to structure improvisation, which is why the previous post, on the Recess Appointments Clause, reduces to a study of grammar. What did Clinton say? "It depends on what the meaning is is." Or maybe that was William Carlos Williams.
Back when I was party to the inner workings of the ACLU, until about the age of 16, they had a policy of staying away from Second Amendment cases. Whichever way you went the choice was so clearly political that it belonged to the public and their representatives to decide. By comparison the Nazis' right to march in Skokie was a given. Call it the formalism of the obvious. These days I'm not sure I trust the ACLU on either.
The gradual retreat from science in scholarship is like a replay of the retreat from God, another version of the advance of secularism. Maybe soon we'll be done with political science. The science of history died 50 years before the Berlin wall came down.
Maybe its time to end the lie of unbiased thought.
"Whichever way you went the choice was so clearly political that it belonged to the public and their representatives to decide."
This is, to be blunt, the sort of rationalization one only resorts to, having already decided that you will not defend a particular civil liberty. The ACLU just needed an excuse to avoid defending a civil liberty they loathed.
"Well regulated Militia."
Every man his own Sherman tank.
If I make a nuke, I can keep it.
"The Constitution as I interpret it is a dead constitution"
You either interpret or not. Interpretation brings language to life.
Scalia is an idiot Brett, you're not even at his level.
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