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PaperclipPerfector  1d ago (text post)   6885 thread views

Culture War Roundup for the week of April 27, 2026

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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.

Law is a social construct but that doesn't make it "not real" either. There will always be people who misconstrue and purposely interpret things in the way they wish, but widely agreed upon rules provide a schelling point for society to focus on. Despite the numerous attacks on our constitutional rights since our founding, would be oppressors have still been consistently forced to chip away at the margins rather than do away with the concepts itself. Even the most anti free speech/anti gun/anti whatever idealogues are stuck having to try to find something to reach for.

Consider for instance the Trump admin's continued efforts to implement tariffs. They're not just saying "we're doing tariffs and we don't need a reason or permission", they're finding old statutes with vague wording that maybe if squint your eyes hard enough and are using only your peripheral vision, maybe it was inclusive to use for tariffs in that manner. That they feel the need to justify themselves at all speaks to the value of having a justification.

My offer to sell you a bridge is complicated by the fact that I do not own the bridge in question, but that doesn't make my offer "not real" either. I really am offering you a piece of paper with ink on it, and I really do expect you to give me your money in exchange for it. Probably I can find other people who will assure you that I do own the bridge; doubtless there is some coherent framing in which accomplices form a "schelling point" for "society" to focus on.

Despite the numerous attacks on our constitutional rights since our founding, would be oppressors have still been consistently forced to chip away at the margins rather than do away with the concepts itself.

I flatly disagree that infringements on constitutional rights have, since the founding, consisted of "chipping away at the margins", but I fully agree that all actions my tribe has taken in the past or will take in the future that might be considered unconstitutional should be framed in this way. Obviously, any action my tribe engages in should be considered as, at the worst, only "chipping away at the margins", not based on the details of what we do, but purely on appeals to vague historical generalities.

Even the most anti free speech/anti gun/anti whatever idealogues are stuck having to try to find something to reach for.

"Do not bring the Second Amendment into this courtroom. It doesn’t exist here. So you can’t argue Second Amendment. This is New York.". Likewise the suspension of Habeas Corpus under Lincoln.

Obviously "even the most anti-whatever ideologues" are not stuck trying to find something to reach for in any substantive sense. Examples overflow of officials and other power-wielders simply ignoring whatever rules inconvenience them without even a fig-leaf of legal justification. But let us be charitable, and recognize that the sorts of fig leaves you appeal to are in fact useful to would-be abusers; after all, even conmen understand the utility of cooling the mark out. Even under this charitable interpretation, it seems to me that you would need to argue that these fig leaves were sufficiently substantive so as to provide meaningful protection to those being abused. Otherwise, all that you are claiming is that the people abusing their power find it more convenient to whitewash their abuses than to let them stand naked, and the pejorative implications of the term "whitewash" should be all the argument necessary for why this is not a reasonable response to the grievances of the abused.

Previous discussion:

As I understand it, your complaint is that people are increasingly reluctant to accept the outcomes mandated by the rules. I doubt that you consider rule-following to be a terminal goal, so the argument would be that rule-following should produce superior outcomes, right?

Let's say we disagree strongly on how things should be, but we've agreed to follow a set of rules. A conflict arises. You follow the rules to the letter. I apply a novel strategy the rules didn't account for. I win. You have no grounds within the rules to contest my win, because I didn't break any of the rules as written. Changing the rules to account for this novel strategy is itself a conflict, and you're already behind on winning conflicts. Suppose this pattern repeats a number of times, and you now expect that you lose by attempting to play by the rules, and I win by playing outside them.

Let's say you believe this outcome is a problem. What are your options to resolve it? Attempting to improve the rules is not, I think, a workable strategy. The simple fact is that, contrary to Enlightenment ideology, there is no flawless ruleset available. You are never going to close all the loopholes. Rules are simplifications, abstractions, map and not territory. they have to be interpreted, adjudicated, enforced, and each of those steps involves human judgement and an irreducible loss of objectivity. Motivated agents will always find ways around a fixed ruleset, and the longer they stand, the more porous they become.

At the end of the day, it seems to me that respect for a ruleset requires either trust that the rules lack fragility, or trust in the other party not to abuse that fragility for their own advantage. Leaving aside questions of cause and responsibility, it seems obvious to me that neither side of the Culture War actually maintains confidence in either of these propositions. Under such conditions, why would one expect the rules to continue to operate in anything approaching a reliable fashion?

I used to argue that the Constitution was whatever five Justices said it was, but now it is not even that. We won multiple Supreme Court decisions on the Second Amendment over the past few decades. Blue states and their circuit courts ignored the rulings, and then we got to observe how unified defiance from "subordinate" legislatures and courts shapes Supreme Court jurisprudence, as the Justices refuse to take cases or deliver decisions that would spark further defiance. And it's not as though Federal law worked any better. We decided that Tribal interests should be protected by law. We won elections, drafted laws, and passed them by the legitimate process. Then Blue Tribe simply ignored them, and the courts have let them do it.

Stop pretending that the outcomes of orderly systems can be trusted. Justice is not, under present conditions, the presumed outcome of a process. Findings and verdicts and rulings do not settle a matter if the outcome is not just. Demand Just outcomes, and never, ever let an unjust outcome rest.

"Do not bring the Second Amendment into this courtroom. It doesn’t exist here. So you can’t argue Second Amendment. This is New York.". Likewise the suspension of Habeas Corpus under Lincoln.

Better link or archive.ph copy.

And Dexter Taylor is now in a maximum security prison where he will likely die, unable to appeal. Because that's how much the Second Amendment is worth in the US.

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