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On an article on viewpoint diversity in the Law at the University of Chicago. Sunstein Viewpoint Diversity
Growing up I believed according to American mythology that the law is blind. Everyone knows of the Blind Justice Statue of the Roman Goddess Justitia. This always implied to me (perhaps being an engineer) that the law was like math 2+2 =4. Word x+y has meaning Z. The whole idea that adding a bunch of words together lacks a definable meaning to me makes no sense. Law shouldn’t have theory. It should be math especially if it is going to be blind and not swayed by public opinion. There should be no theory involved. I guess this makes me a textualists. But it turns out at places like UC that you have 10-20 smart clusters of people who all have different solutions to 2+2 = 4.
Law being like math I believe should definitely apply to judges. Legal theory can be useful for a lawyer who works for a Senator who is writing legislation. Then legal theory has a purpose of designing the equations to get a law that does what you want.
One thing that came out of UC was applying economics to law. This again I have no problem with adding economics to new legislation you create. But from my understanding of legal history judges began adding economic tests to old law. To me this is like discovering that 2+2 had a different answer than the 4 that was a correct answer.
Once I realized the law as practiced is not mathematics I switched my judicial philosophy from some form of originalism to Ketanji Brown theory. I just want a judge who votes the way I want her to and do not care if she’s worse at arguing her theory than another guy. The best I can tell from history is that when public opinion on an issue changes the legal theorists of the smart guy at UC becomes the theory everyone else begins to quote. I prefer to just pick judges who back the policy I want in the current legal environment.
Pragmatically the law has never been blind. The criminal justice system has always judged poor dumb kids differently than rich smart kids. The same crime committed by an urban youth versus a Kennedy kid has never been punished the same way. A big reason for this is the court had a reasonable expectations that the Kennedy’s had the resources to deal with the behavior internally and society didn’t need to spend resources to make sure the crime didn’t happen again.
I don't think our law system was ever meant to be mathematics or purely procedural. The point of trial by jury is that, instead of an agent of the state (judge) judging you at best by the letter of the law or at worst by his personal whims, you get a jury of your peers judging you by local common sense/prejudice. Les Mes gives the theatrical argument for this. The benefit of Common Law is that, instead of the application of the law solely being dictated from above, you get precedent of how the law was applied in reality and hopefully that contact with reality makes the application of the law better and more sensible.
The above system works great ... when you share most values with your countrymen. If you think your neighbors lack common sense and/or their prejudices are wrong and/or harmful, then their influence will move both juries directly, and precedent indirectly via the judges their representatives vote in, in directions you don't like. A cliché example of this would be being judged by an ethnic outgroup. I'll note European countries which don't have common law also have the problem of internal values conflict and the problem of sharing a state with people you fundamentally disagree with is a perennial human issue, so common law and trial by jury are not the issue.
I think a lot of the Constitution worship you see among boomercons is cargo culting. I think the constitution, and it actually sticking, is one of the greatest social achievements in human history. Ask the French or Latinos how easy keeping a constitution is. At the same time, the founders consciously knew that the Constitution was a tool and agreement to promote values they cared about and create an agreement that would let the states function together. Treating following it as an end in itself, like it was the 10 Commandments, was never how they viewed it. Most leaders of the early republic, including later ones like Andrew Jackson, recognized that keeping the social constructs that the 'union is perpetual' and 'the constitution is supreme' were foundational to the functioning of society, but the end-goal was always securing people's wellbeing and liberty rather than following the constitution for its own sake.
To that end, everyone agreeing to treat the constitution and union as inviolable while still manipulating procedural outcomes seems to have been the dominant trend/strategy in our history across the strong majority of factions.
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