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PaperclipPerfector  1d ago (text post)   7333 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.

I can't pinpoint when I started thinking that law was basically a bunch of bullshit, but I know what case solidified that view in my mind beyond any shadow of a doubt - Wickard v Fillburn. For those unfamiliar:

Roscoe Filburn was a farmer in what is now suburban Dayton, Ohio.[4] He admitted producing wheat in excess of the amount permitted. He maintained, however, that the excess wheat was produced for his private consumption on his own farm. Since it never entered commerce at all, much less interstate commerce, he argued that it was not a proper subject of federal regulation under the Commerce Clause.

...

By the time that the case reached the high court, eight out of the nine justices had been appointed by President Franklin Roosevelt, the architect of the New Deal legislation. In addition, the case was heard during wartime, shortly after the attack on Pearl Harbor galvanized the United States to enter the Second World War.[6][7] The decision supported the President by holding that the Constitution allowed the federal government to regulate economic activity that was only indirectly related to interstate commerce.

...

That effect on interstate commerce, the Court reasoned, may not be substantial from the actions of Filburn alone, but the cumulative actions of thousands of other farmers just like Filburn would certainly make the effect become substantial.

Therefore, Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if the individual effects are trivial.

Nope. Zero chance. You are just never, ever, ever going to convince me that a single person has ever honestly believed that growing wheat and feeding it your cows is interstate commerce or that anyone believes that such an extension of interstate commerce regulatory powers would have been considered legitimate by the people that penned and signed the Constitution in. If growing wheat and feeding it your cows can be interstate commerce, there is simply no end to the potential malleability of any law on the books.

I sometimes wonder if Franklin Roosevelt didn't do more damage to the US than any other president. In some ways he was a proto-Trump. He saw problems, and rather than try to fix the system, bulldozed through it and made up justifications, then the rest of the government had to rationalize things post-hoc to maintain the veneer of a Republic.

I broadly agree. FDR is the man who created the executive branch Trump is wielding today, and he's why we have to deal with such high stakes every 4 years. It was under his rule that the federal government became the largest US employer. But he's remembered fondly, because expanding the federal government enormously remains quite popular.

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