This One is Cute.

How to Think of Law,  written by a (self-described very tall) non lawyer who apparently reads about the law in the mainstream press and finds herself qualified to opine expertly.  Hmm.

Replacing a Justice Shouldn't Be So Excruciating

Longtime readers will easily guess that I generally prefer the jurisprudence of Antonin Scalia to that of, say, Ruth Bader Ginsburg, and that I would prefer the next Supreme Court justice be more like him than like her. But I would also prefer to live in a country where the fate of the republic did not turn quite so sharply on which of nine unelected lawyers happens to die in a given year.
...
Far too many people on every side want to do an end run around the legislation process by getting unelected judges to declare their particular concerns beyond the reach of legislators. Why bother tediously lobbying senators and representatives, when you can simply win the White House, appoint a few judges, and get them to transform your most ardent desires into untouchable rights?

I remember having an argument over a controversial issue a few years back, in which I offered the opinion that a goal was quite desirable, and yet, probably not really mandated by the Constitution. It doesn’t matter what the issue was; you may insert your own favorite here, from abortion rights to drug legalization. Because whatever the issue is, there are people making exactly the same sort of bad argument about the law.

The fellow arguing with me offered the opinion that this issue was really, really important. I agreed, and repeated that it was still probably not really mandated by the Constitution. He explained, more slowly and loudly, how important this issue was. I said yes, but that doesn’t mean that it’s in the Constitution. The world is filled with many splendid ideas which are not covered by the Constitution. The chap I was arguing with looked befuddled, and then proceeded to reiterate how important this issue was. He was, I must point out, a Harvard-educated lawyer.*

Clearly, she does not understand legal interpretation or how legal analysis applies to the facts.  The smarter you are, you see, the harder it gets...

If it were just about "finding" something directly addressed in the Constitution, we could just write up a quick computer program to search and find, or deny legal rights.  Trust me:  it is a little more complex than that, whether you agree or disagree...

It's really not so simple as she makes it sound here, nor would we want it to be less complex.  That's why it is so important that we get this pick right, as we have seen in the recent inconsistent muffed flubs of the Roberts Court.

That's the beauty part of law compared to politics (and why we should be wary of mixing the two):  what you might get away with in inconsistent punditry is immediately on view in legal opinions that don't follow precedent == the case law telling us how we are to interpret the Constitution.  (Yes Virginia, even originalists believe in precedence, the necessity of crafting credible arguments built on what has come before)

It's really not political, it's intellectual.
There's a difference you know...
--------------------

* Yeah, but I wonder how many drinks he had downed before patiently trying to explain it to her at the dinner party...  This is written at the undergraduate, I-think-I-know-I-think-I know.... level with very little understanding of what she does not understand.  But hey, if it's good enough for Mr. Bloomberg, it's good enough for his readers....

Suffice it to say, some issues belong decided in the legislatures, but some issues definitely belong decided in the courts.  It's not a personal preference choice:  it's about the wisdom of knowing the difference and the courage to distinguish -- and patiently explain why some issues get elevated while others do not.  (ps. It's really NOT all political, despite what the pundits might have you believe.)

That's the beauty part:  ConLaw 101.
You really do have to hit the books and read the cases to understand where we are coming from... how American jurisprudence has developed and where we are going.  Don't knock it, or cheapen it, please.

You don't need a law degree to make an honest argument, but you do need to go a bit deeper than just conversation with friends, over dinner and drinks.  Unless, of course, you have friends a good cut above...
--------------------------------

* Before delving into the casebooks, I would recommend reading H.L.A. Hart's, The Concept of Law.  It's  a thin one, but by no means easy reading... Highly interesting though, and again, recommended if you really want to know more about legal rights and American jurisprudence, and why the courts rule the way they do.

The Concept of Law developed a sophisticated view of legal positivism. Among the many ideas developed in this book are:

• A critique of John Austin's theory that law is the command of the sovereign backed by the threat of punishment.
• A distinction between primary and secondary legal rules, such that a primary rule governs conduct, such as criminal law and secondary rules govern the procedural methods by which primary rules are enforced, prosecuted and so on. Hart specifically enumerates three secondary rules; they are:

• The Rule of Recognition, the rule by which any member of society may check to discover what the primary rules of the society are. In a simple society, Hart states, the recognition rule might only be what is written in a sacred book or what is said by a ruler. Hart claimed the concept of rule of recognition as an evolution from Hans Kelsen's "Grundnorm", or "basic norm."
• The Rule of Change, the rule by which existing primary rules might be created, altered or deleted.
• The Rule of Adjudication, the rule by which the society might determine when a rule has been violated and prescribe a remedy.

• A distinction between the internal and external points of view of law and rules, close to (and influenced by) Max Weber's distinction between the sociological and the legal perspectives of law.
• A late reply (published as a postscript to the second edition) to Ronald Dworkin, a rights-oriented legal philosopher (and Hart's successor at Oxford) who criticised legal positivism in Taking Rights Seriously (1977), A Matter of Principle (1985) and Law's Empire (1986).