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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.
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.
"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:
To be clear here, this is no actual recorded statement like this. There is a claim by the defense attorney that they were told this by the judge, but there is nothing to support it but his word and his word alone. Maybe it happened, but "defense lawyer claimed something" is not that much without anything else to support it. Even then, even if it did happen, a judge of a criminal court is a very low level position with multiple appeals courts above them. Their word is not final.
If you were living in almost any other country, we wouldn't even be having this conversation. You would simply not have a gun, and you would not be able to make meaningful legal appeal otherwise.
That's actually a quirk of how the law works, that presidents have used in various ways already even today. Consider for instance the Trump tariffs in place for a year were ruled unconstitutional! And in response the Trump admin has pivoted to another, most likely also unconstitutional, means of implementing his tariffs. But likely doesn't mean it has been ruled on in this specific way, and the US legal system assumes new decisions like that is lawful until otherwise said. You and "your tribe" is benefiting from this just the same. Trump gets to fuck around with the economic wellbeing of companies all around the country at his whim because of this presumption.
That it takes time to sort out many wrongdoings is not a great criticism, no system can have immediate and perfect retification. Come up with one that does first before whining that one of the most consistently successful and free country in the world can't do the impossible.
We have multiple circuits where the courts have never, not once, struck a law down for violating the Second Amendment, and as it happens this court is in one of them, and as it happens these circuits are also home to the most draconian restrictions on the keeping and bearing of arms. IIRC, most (all?) of the other circuits have only found a small handful of laws to violate the Second Amendment, and that only very recently.
This state of affairs can be explained in two ways, it seems to me. One explanation is that the Second Amendment has been routinely ignored and violated in its substance, with only the most marginal protection afforded, and that quite recently. The other explanation is that none of the many, many, many laws restricting firearms use or ownership enacted and enforced in the history of our legal system have ever violated the protections afforded by the Second Amendment in any way that demanded formal response except very recently and in the most marginal sense. If this is your argument, then my response is that the Constitution appears worthless to me, and I am opposed both to appealing to its protection and to assenting to such appeals by others from this point on. As it happens, this latter point is my actual position.
"But whether the Constitution really be one thing, or another, this much is certain - that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist."
There has been no meaningful legal appeal available for much of the nation's history, and there is no observable meaningful legal appeal in large portions of the country even now. Point to the examples of "meaningful legal appeals" to the Second Amendment, compared to, say, the First Amendment.
The second Amendment does not protect my right to keep and bear arms. My arms protect my right to keep and bear arms. I have guns because I and many others have made it clear that if Blues attempt to disarm us, we are plausibly willing to coordinate meanness against them on a level they would prefer not to risk. Amusingly, it appears that this reality is probably easier to export to other countries than the amendment itself, and I both hope it happens and am dedicated to assisting in the process.
Yes. Once one realizes that procedural outcomes can be manipulated, one is free to manipulate them. This is not evidence that procedure is even weakly deterministic. It is possible to create a system where the Law is a whore, and it is good to recognize when one is, as we are, living within such a system.
Are you familiar with the phrase "the check is in the mail"? How would you describe its meaning?
Your statement is compatible with any level of rectification all the way down to none at all. In reality, the slower rectification comes, the less confident we should be that it is coming at all, and the less trust we should place in the systems that purport to provide it. If the efficacy of rectification mechanisms are in doubt, the proper course of action is not to assume everything is fine, it is to begin poking and jostling the machine with increasing fervor until it delivers meaningful results.
On the other hand, if one derives direct benefit from the breakdown of the rectification machine, the obvious course of action is to build a fence around the machine to prevent anyone from inspecting it too closely, to play soothing music for those waiting in line, to put a curtain up around the output so that those in line can't observe what the individuals being served actually receive, and generally to make loud statements that everything is working totally fine and anyone who says differently is a scammer or a troublemaker.
This is a laughable statement. You appear to be claiming that the freest country at any point in time is the maximum level of freedom one can reasonably ask for. I do not think you actually believe this in any consistent way. I do not believe you would apply this logic to, say, England when it debated banning slavery.
My freedom is not granted to me by the state, but rather is innate to me as a human. There is no objective measure of my freedom, only my own reason and prudence. I do not need your permission to conclude that the level of freedom you and your tribe are willing to grant me is unacceptably low, nor to coordinate meanness with my tribe in an effort to secure the level of freedom you seek to deny us. To the extent that many millions of my fellow tribals are persuaded to see things my way and not yours, the question becomes whether you would prefer to grant us the freedom we demand, or accept increasingly severe levels of conflict to preserve your preferred status quo.
Again, I stand by this statement:
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