Friday, July 01, 2011

"Opinions on the Shape of the World Differ"

Mark Tushnet

In response to Brad DeLong, I'll try once more and then stop unless I feel really really provoked. THERE IS NO "FACT OF THE MATTER" on whether a constitutional argument is good or bad, as there is about the shape of the world. Constitutional arguments are good if there's enough political wind behind them to make them plausible/credible/winning among relevant audiences, bad if they don't pass the plausibility threshold among those audiences.

This is a point about "jurisprudence" and politics, not about whether the Section 4/Take Care argument is "good" or "bad," a matter on which I have for these purposes no view. That's why I started my comments with the observation that there was a structural similarity between the anti-ACA arguments and the Section 4/Take Care argument. We may be in the process of observing an argument moving along the continuum ranging from "really strange" to plausible to credible to ..., as we saw with the Article II argument in Bush v. Gore and with the anti-ACA argument.

Trying again: The arguments of tax protestors are (regarded by the relevant audiences as) bad ones because tax protestors have no substantial political support for their constitutional arguments. They would be regarded as plausible arguments were Michele Bachmann, Ron Paul, and Tim Johnson to start endorsing them in the Republican debates, credible were one of the three to be the Republican nominee, and (probably) winning were one of them to be elected President. But the world would still be round if one of them won the presidency.

I'm not interested in the merits of the Section 4/Take Care argument except to get it into the right shape. (As far as I know, but I could be wrong, I'm the first in the current discussions to insert the Take Care part of the argument, and I appreciate that fleshing out the argument would indeed require me to say something about the last-in-time and specificity arguments DeLong makes, but I'm not all that interested in doing so. The Democrats can hire lawyers to do it.)

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