Guns and Con Law
No, this post isn't about the Second Amendment.
I'm reviewing for my Constitutional Law exam on Friday, and I'm noticing the repeated emphasis the course placed on political legitimacy. If you see what the Supreme Court is doing as legitimate, you may hate its decisions, but you abide by them because you see the process as fair. But if you see it as illegitimate, you get mad. And if it's illegitimate enough, you grab your guns. See Iraq. Law is a game played in the shadow of the state of nature.
So why isn't there more legal scholarship on the current level of the judiciary's legitimacy? (Maybe there is; I didn't do any research to see.) Justices occasionally discuss it in a case, but usually as a reason to avoid protecting an individual right (Casey is an exception). If they are serious about using the Court's legitimacy as a reason to avoid taking the law in a progressive direction, shouldn't they want some evidence for the likelihood that people will grab their guns if they decided the case the other way? We seem to be pretty far away from that point; can you imagine a president telling the Court in response to a politically unpopular decision: "The Supreme Court has made its decision; now let them enforce it" (President Andrew Jackson's apocryphal statement)?
Richard Posner makes a related point in the book I'm currently reading, Law, Pragmatism, and Democracy. He argues strongly for a pragmatic approach to the judicial function; at times, that approach might adopt a strongly formalist tone to lend legitimacy to a decision. Legal formalism makes it sound as if the law compelled a single "correct" result in every case, thus mitigating the judge's responsibility for an unpopular decision. Formalism is what Clarence Thomas is doing, for example, when he says that the anti-sodomy laws in Lawrence v. Texas seem "uncommonly silly" to him, but the Constitution obligates him to uphold them. A legal realist would say that he is being disingenuous; if he really disliked those laws, he would strike them down.
(For those of you who've read Lon Fuller's The Case of the Speluncean Explorers: Handy's opinion sounds strongly in legal realism. I love his opinion, but it becomes a good deal more problematic when he reaches an unpopular result. Then an important consideration becomes the Court's legitimacy.)
So why don't legal scholars talk about the Court's legitimacy more? (You might say that public discussion of legitimacy undermines that legitimacy by turning the Court into a blatantly political organ. Fair point. But really, how many people read law review articles?)
I'm reviewing for my Constitutional Law exam on Friday, and I'm noticing the repeated emphasis the course placed on political legitimacy. If you see what the Supreme Court is doing as legitimate, you may hate its decisions, but you abide by them because you see the process as fair. But if you see it as illegitimate, you get mad. And if it's illegitimate enough, you grab your guns. See Iraq. Law is a game played in the shadow of the state of nature.
So why isn't there more legal scholarship on the current level of the judiciary's legitimacy? (Maybe there is; I didn't do any research to see.) Justices occasionally discuss it in a case, but usually as a reason to avoid protecting an individual right (Casey is an exception). If they are serious about using the Court's legitimacy as a reason to avoid taking the law in a progressive direction, shouldn't they want some evidence for the likelihood that people will grab their guns if they decided the case the other way? We seem to be pretty far away from that point; can you imagine a president telling the Court in response to a politically unpopular decision: "The Supreme Court has made its decision; now let them enforce it" (President Andrew Jackson's apocryphal statement)?
Richard Posner makes a related point in the book I'm currently reading, Law, Pragmatism, and Democracy. He argues strongly for a pragmatic approach to the judicial function; at times, that approach might adopt a strongly formalist tone to lend legitimacy to a decision. Legal formalism makes it sound as if the law compelled a single "correct" result in every case, thus mitigating the judge's responsibility for an unpopular decision. Formalism is what Clarence Thomas is doing, for example, when he says that the anti-sodomy laws in Lawrence v. Texas seem "uncommonly silly" to him, but the Constitution obligates him to uphold them. A legal realist would say that he is being disingenuous; if he really disliked those laws, he would strike them down.
(For those of you who've read Lon Fuller's The Case of the Speluncean Explorers: Handy's opinion sounds strongly in legal realism. I love his opinion, but it becomes a good deal more problematic when he reaches an unpopular result. Then an important consideration becomes the Court's legitimacy.)
So why don't legal scholars talk about the Court's legitimacy more? (You might say that public discussion of legitimacy undermines that legitimacy by turning the Court into a blatantly political organ. Fair point. But really, how many people read law review articles?)
posted by Garrett at 8:28 PM
1 Comments:
A competent American historian noted that I got Andrew Jackson's apocryphal quotation wrong (it should have been: "John Marshall has made his decision; now let him enforce it."). I acknowledge that I took some creative license with the quotation.
But how can one misquote something someone never said?
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