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ABA Survey Finds People Angry At Judges:
The ABA Journal eReport has a piece on a recent ABA-sponsored survey about attitudes toward the judiciary:
  More than half of Americans are angry and disappointed with the nation's judiciary, a new survey done for the ABA Journal eReport shows.
  A majority of the survey respondents agreed with statements that "judicial activism" has reached the crisis stage, and that judges who ignore voters' values should be impeached. Nearly half agreed with a congressman who said judges are "arrogant, out-of-control and unaccountable."
  Legal experts interviewed for the story were surprised by these results, with the exception of one expert with "alternative" views:
  The survey results surprised some legal experts with the extent of dissatisfaction shown toward the judiciary. "These are surprisingly large numbers," says Mark V. Tushnet, a constitutional law professor at Georgetown University Law Center in Washington, D.C.
  "These results are simply scary," adds Charles G. Geyh, a constitutional law professor at Indiana University School of Law in Bloomington.
  . . .
  But one legal scholar with an alternative viewpoint is not surprised. The survey results reflect the reality that "there is a lot of judicial activism under any definition," says John O. McGinnis, a professor at Northwestern University School of Law in Chicago.
  In case you're wondering, I believe "alternative" is supposed to mean "conservative." Thanks to ambivalent imbroglio for the link.
Steve:
It's possible that they meant his viewpoint was "alternative" in the sense that it disagreed with the first two respondents.
9.30.2005 2:07pm
Joel B.:
How dare the Mongrel Horde voice discontent with their elite masters.

Seriously, if judges want respect, they ought to try to earn it, they won't get respect necessarily from me just because they put honorable in front of their name.

Judges who ignore voters values should be impeached! I love it, that'll put the candlepower underneath their behind.

NB: obey, yes...respect...not so much
9.30.2005 2:08pm
Scipio (mail) (www):
This is totally unsurprising.

Law professors who do not spend a lot of time in the practice or have not done so recently might be missing the boat on this one. Among average people, lawyers and judges have a lot of power and respect, particularly among the poorer and less well-educated members of society. But the reason for that respect and awe is that the poor and undereducated don't really know or understand what lawyers and judges do and can do. Put another way, the expectations of the lay person are often rudely assaulted by what to us professionals appear to be perfectly reasonable and appropriate decisions. This is even true among those familiar with the legal process when their expectations are erroneous.

This is just the capture theory of law professors in action. If they spent an hour a day dealing with divorce clients or contractors suing on open accounts, they'd be a lot less surprised. The American people believe the law belongs to them and that they understand it, even though they don't understand it as well as they think. We ignore this at our peril.

After all, a lawyer is a guy smart enough to pass a bar exam, but stupid enough to want to finish law school. That's a skewed perspective any way you slice it.
9.30.2005 2:13pm
Cornellian (mail):
The numbers are higher than I would have expected, but I wonder how much one should really read into these numbers. I suspect judges still do far better than the legislature or the executive in public esteem, and it's very easy to say that judges should "reflect voters' values" (i.e. the values of the person answering the survey questions) without giving any real thought to the implications of that statement. Basically, I wonder if there's any real intensity behind these numbers, or whether it's just some throwaway comments that the surveyed people will have forgetten 5 minutes after the survey taker hangs up the phone.

I also wonder whether these numbers mean anything in terms of the common (but misleading) "left/right" axis of politics. Liberals often call Scalia a judicial activist (not entirely without justification in my opinion) so in other words, there are probably quite a few people indicating dissatisfaction in this survey on the basis of results in particular cases but this doesn't automatically translate to conservative survey recipients unhappy with liberal judicial results. It could just as well be the reverse for any particular respondent.
9.30.2005 2:13pm
Bryan DB:
I guess I'm kind of happy that judges ignore voters' values. For example, I'd rather the Supreme Court Justices focused on, say, the Constitution, instead. If voters want their values put into law, they need to look to their congressmen and women. This survey doesn't show outrage over activism so much as it shows that people are dense.
9.30.2005 2:20pm
Steve:
The numbers conflate "strongly agree" and "somewhat agree." So when the statement is "court opinions should be in line with voters' values, and judges who repeatedly ignore those values should be impeached," it's relatively easy for someone to say that they somewhat agree, unless their view is that court opinions should be the opposite of voters' values. You could "somewhat agree" and not agree at all with the impeachment aspect of the statement.

All it takes is one high-profile, unpopular decision (like the Pledge of Allegiance cases) for people to agree that there is "some truth" to the negative statements about judges. But that doesn't mean that the judiciary as a whole is in discredit, notwithstanding the "alternative" campaign to accomplish exactly that.
9.30.2005 2:20pm
DrewSil (mail):
I thought the judicial branch was specifically unelected so as to avoid the tyranny of the majority. I propose that the real reason for this dissafection has nothing to do with actual judicial practice, which has always been antimajoritarian, but rather with the negative publicity this practice has lately recieved.

I place polls about justices in the same category as polls about evolution, they are interesting but provide little evidence for deciding the correctness of the underlying questions. At most they indicate that a deeper analysis is necessary using more relevant criteria.
9.30.2005 2:24pm
Arthur (mail):
Are mor Americans concerned about judges for the same reasons as this forum? Most people have experience with judges primarliy at traffic court. From my experience there, "arrogant, out of control, and unaccountable" is accurate, and it doesn't have much to do with their positions on the second or the ninth amendment.

The survey is also worded to get the maximum possible number of "I hate judges" answers. First, the ask people if they agree with a statement allegedly made by a Congressman or governor. Then, they give two possible answers that both mean agree. This is an agitpoll.
9.30.2005 2:29pm
Thorley Winston (mail) (www):
Something else to consider: most people don’t deal with a judge except when they have to go to court in an adversarial process in which at least one of the parties is going to leave unsatisfied with the result and sometimes (not always without justification) thinking that they were treated unfairly by the system which is embodied the presiding judge.

How do you suppose a person like that would answer these sorts of survey questions?
9.30.2005 2:32pm
Thorley Winston (mail) (www):
BTW: does anyone have a link to the actual survey questions and/or methodology? That's probably more useful than just an article about the results.
9.30.2005 2:34pm
Kent Scheidegger (mail) (www):
Here is an interesting comment from one of the "experts":

"Geyh of Indiana University says the survey suggests 'a trajectory' upward in the number of people unhappy with the American judiciary—apparently simply because these critics disagree with the law that judges have a duty to apply."

The possibility that the critics might be right about the law and the judges might be violating their duty does not enter his realm of consciousness.

The ABA president was not surprised and reacted in typical ABA fashion. The problem is with the public, and they need to be educated. Again, the possibility that the public might be right and the judges need to be corrected does not enter the picture.
9.30.2005 2:34pm
42USC1983 (mail):
Who knew that John McGinnis was that Kurt Cobain of the academy. Cool!
9.30.2005 2:46pm
anothereugene (mail):
Does anyone actually not think that these numbers are the result of the incessant "activist judges" chant that's been emanating from the GOP for the past three years or so? After all, introducing mantras and making them catch hold (up-or-down vote, anyone?) is their specialty of late.
9.30.2005 2:48pm
Cecilius:
I think this study and the reactions to it, by the ABA, law professors, and commenters here show just what a mess perceptions of the American judiciary has become. It could easily said that everybody is both right and wrong at the same time. Yes, judges who ignore voters' values should be impeached if decisions are imposed in defiance of Constitutional or statutory commands (or, arguably, in the absence of an affirmative command to make a value judgement). But, the ABA is also right in that voters need to be "educated" when the decision to let a convicted child pornographer free, for example, is criticized even though the defendant was convicted solely on evidence that was seized in blatant violation of the Fourth Amendment. After all, most voters' values believe that terrible criminals should be convicted - not get off on "technicalities." It's true that most laypeople don't know what judges and lawyers are capable of - yet many judges and politicians don't seem to understand the judiciary's role in the government either. People demand the election of judges, yet they're supposed to man the branch of government specifically designed to be unaccountable to the public.

The problem is that there is little difference between judges and politicians in the minds of many. Did you lose your political battle in Congress - or did you not even try because you knew it was a sure political loser? Why try to convince hundreds of elected representatives to agree with your political goals when you can get what you want by convincing only a small handfull of unelected, politically friendly judges? And too many judges have been eager to serve as a legislative bypass. So, the public begins to see the judge as a politician and unsurprisingly treats their role as a political one - where outcomes are pre-determined based on whether the judge personally approves of the policies involved in the case. So, don't be surprised when you're confronted with confirmation hearings that are extremely political and with popular anger. The law, for real or not, has been transformed into just another political arena, but here the public doesn't get a vote.
9.30.2005 2:55pm
Commenterlein (mail):
I sincerely doubt that more than 10 percent of the respondents would be able to name a single concrete case out of the last five years as an example of judical activism. The survey results themselves are not at all surprising given the constant effort of Fox News and corporate-funded conservative "think" tanks to propagate the inmpression of a "judical activism crisis". Given that Fox is the most popular cable news channel, and given that Fox constantly agitates against judges, many people are bound to believe that acitivist judges are a problem. Whether this tells us anything about the accuracy of the claim, as most commenters here seem to think, is highly doubtful.
9.30.2005 2:59pm
42USC1983 (mail):
Would someone here please a) define judicial activism; b) cite three examples; and c) demonstrate why those three cases involve judicial activism? Are non-originalist judges per se a judicial activists? Was Scalia an activist in Gonzales v. Raich, since he, unlike Justice Thomas, refused to apply an originalist understanding of the Commerce Clause?
9.30.2005 3:03pm
Cecilius:
"Commenterlein":

People aren't as stupid as you believe. I'm always surprised at the number of people who are familiar with the relative specifics of front-page cases (given that I'm 'the lawyer-guy' in a blue collar neighborhood, people want to talk to me about the law more than sports or the damn home owner's association). And believe it or not, the unsophisticated, uneducated, lemming, hillbilly public, as Commenterlein appears to view them, are good at boiling criticisms of cases down to the same succinct points as law professors do, such as how "public use" became "public benefit" in Kelo, for instance. And of course, it's a little silly to blame the entire "inmpression," in your words, on Fox News considering that Antonin Scalia is habitually tagged with the "activist" label (and as for the "corporate-funded conservative 'think' tanks, would you like to see the list of corporate donors to the Sierra Club, Rainbow PUSH Coalition, and NOW?).
9.30.2005 3:08pm
Scipio (mail) (www):
The idea that this is some kind of recent meme propagated by the Evil Rovian Empire is a bunch of hogwash, based entirely on anecdotal examples.
9.30.2005 3:08pm
anothereugene (mail):
The idea that this is some kind of recent meme propagated by the Evil Rovian Empire is a bunch of hogwash, based entirely on anecdotal examples.

Are you arguing that it has not been a dominant Republican talking point, that it isn't recent, or that it hasn't caught on?
9.30.2005 3:22pm
unhyphenatedconservative (mail):
BryanDB,
The Justices ignore the voters' values but some have no problem looking to the values of (select) foreign values. The Court has become a political body issuing policy rulings, not Constituional interpretation. AS such, people are rightly angry that they have no control over a body to which the elected branches have utterly ceded power.
9.30.2005 3:23pm
Commenterlein (mail):
Cecilius,

With all due respect, I haven't called anyone stupid or a hillbilly, you appear to be projecting. In fact I view the observation (which you may disagree with) that most people do not pay much attention to court decisions and do not have the appropriate background to decide whether a case decision is based on an uninterested interpretation of the law or activism as perfectly normal. After all, understanding and evaluating court decisions is objectively difficult, and the direct effects of even most "important" decisions on each individual's life are almost always miniscule.

As for your personal observation that the people talking to you, the lawyer type of your neighborhood, are quite knowledgeable about court cases, you are falling prey to the sample selection fallacy. These people are talking to you about court cases because they are interested and know something about them. The people talking to you are not representative of the people living in the neighborhood, they are what social scientists call a "biased sample". The same happens to me in my social circle, in which I am the "finance guy". The people talking to me about finance are usually reasonably knowledgeable about the inner workings of equity and debt markets. At the same time, there is overwhelming evidence that most people have no idea of how these markets work. The solution is simply that some people come and talk to me because they know something about finance and like to talk about, while most people don't know anything about it and have no desire to talk about it.

P.S.: Did the funding structure of the Sierra Club have anything to do with anything given the topic of the thread?
9.30.2005 3:26pm
Adam K:
I'm not surprised, but I also don't see how this is indicative of any more than an uninformed public perception. Not to be an elitist here, but my intuition is that well more than half of the public generally doesn't understand the law, the Constitution, the government in general, or the role of judges and lawyers. Hell, quite a lot of people who are actually trained to understand these things don't really understand them. The media often misreports or underreports the effects, rationale, and underlying facts of judicial opinions, and pundits/columnists like Franken, Hannity, Coulter, Moore, the NYT, the NYP, and innumerable bloggers distort or spin decisions into something they're not in order to pander to a demographic.
9.30.2005 3:27pm
lyle stamps (mail):
re: alternative vis-a-vis the "other two" legal scholars quoted.

I don't buy it; not when the reason for the article is a survey that shows popular anger at 'activism' in judges.

Wouldn't a better headline have been:

Americans outraged at judges; Out of Touch Scholars surprised.
9.30.2005 3:29pm
Adam K:

Americans outraged at judges; Out of Touch Scholars surprised.


Sort of like "Americans outraged at heliocentrists; out of touch scientists surprised."

That's a glib response, I know, but my thought is that the scholars are more apt to have their finger on the pulse of reality than a fickle public that is largely ignorant on the subject about which they are "outraged."
9.30.2005 3:33pm
Anderson (mail) (www):
Some of my best friends are alternative.

Indeed, I see no need to question their alternative politics. It's their choice!
9.30.2005 3:41pm
unhyphenatedconservative (mail):
"Not to be an elitist here, but my intuition is that well more than half of the public generally doesn't understand the law, the Constitution, the government in general, or the role of judges and lawyers."

Yeah, no elitism there. How dare the rabble question the divine right of JD's to run the country.
9.30.2005 3:42pm
Thorley Winston (mail) (www):
Yeah, no elitism there. How dare the rabble question the divine right of JD's to run the country.


Unhyphenatedconservative has a point. Comments like “well more than half of the public generally doesn't understand the law, the Constitution, the government in general” from people in the legal profession are probably the sort of thing that has the respondents so apparently ticked off at lawyers and judges.
9.30.2005 3:47pm
Cecilius:
Commenterlain:

Well, with all due respect, when you flatly state that the respondents of the poll can not name a single case that supports their views and are all the victims of insidious FoxNews/ conservative think tank brainwashing, you paint nothing less than a condescending and insulting view of the general public. I expect my neighbors to know as much about Supreme Court cases as I know about welding boilers (Glen's profession) or installing industrial air conditioners (Carl's profession) - yet they know a stunning amount about KELO, LAWRENCE, ROPER and other often controversial cases. If I'm guilty of projecting, it's the assumption that many of the survey respondents are as generally familiar with plausible 'judicial activism' cases as they are. And yes, there is selection sample bias in that they choose to talk about these things with me while being less likely to talk about these things amongst each other when I'm not around. Sure, debt and equity are both complicated and generally unknown to the public. 'Judicial activism' cases, however, are front page news, while the intricacies of your chosen profession are not. Therefore, there is no relationship between the general population's lack of knowledge about finances and their knowledge of controversial and much publicized Supreme Court cases. I also think it's a little silly for you to point out who is or is not "representative" of my own neighborhood.

P.S. The funding structure of the Sierra Club is only important due to your accusation that corporate funded organizations propogate false impressions of judicial activism. To prove the point that an organization's funding has little or no relationship to the reliability of its message, I listed corporate-funded groups that are non-conservative which you may (or may not) find more trustworthy.
9.30.2005 3:49pm
neo-neocon (mail) (www):
I think the term "judicial activism," is often used by people to mean "anything a judge does that I don't like." I think much of the dissatisfaction with judicial decision-making comes from the fact that many decisions are perceived as counterintuitive to what most people would regard as common sense or as justice. The details of how a judge actually arrives at a decision seem nitpicky at times—what people want to see are decisions that make sense to them, and some of the legal niceties only make sense if one gets into the details (and of course sometimes they don't make sense even if one DOES get into those details).

The sort of thing I mean is discussed in today's post at my blog,which concerns the recent ruling in US District court to release further Abu Ghraib photos (sorry, I can't seem to do give the URL properly in the comments section here--it keeps rejecting it). The reasons behind the judge's decision are not clear to the average reader of the average article about this in the average newspaper, and the decision seems to many to go against common sense. "Many" in this case would certainly tend to include most Republicans, but I believe it would also include a fair number of Democrats as well.

I don't believe in a judiciary that rules by popular opinion. But I do believe that if the law too often goes against common sense notions of justice and proportion, it runs the risk of a tremendous—and at times, perhaps, justified—backlash.
9.30.2005 3:53pm
Taimyoboi:
"After all, understanding and evaluating court decisions is objectively difficult..."

I don't think it was beyond the reach of a person to grasp, for example, that the MA Supreme Court ruling mandated gay marriage, especially since it was headlined on papers like the Boston Globe and New York Times (also, of course, funded by the VRWC).

And I certainly don't think that it's beyond the reach for a person to arrive at the conclusion that such decisions should be made popularly via the legislature.

Granted someone's reasoning may not be as nuanced as Mr. Volokh's or Mr. Kerr's, but since when is that a necessary condition for coming to a correct decision?
9.30.2005 4:01pm
Adam K:

"Yeah, no elitism there. How dare the rabble question the divine right of JD's to run the country."


Yeah, that's what I said.

I'm not sure how what I said differs from someone commenting that more than half of the public has paltry understanding of calculating the structural integrity of bridges, microbiology research methodology, or other specialized fields. Of course, in those areas, people might be willing to admit they have no clue what they're talking about, whereas with politics everyone has to have an opinion, informed or otherwise.
9.30.2005 4:01pm
Commenterlein (mail):
Cecilius,

The point about sample selection was not that people talk more to you about court cases than amongst themselves, but that the people talking to you about court cases are not representative of their environment. To point out that people who like to discuss court cases tend to know more about them than people who don't is hardly silly.

Secondly, your statement "to prove the point that an organization's funding has little or no relationship to the reliability of its message, [...] is quite surprising - do you honestly believe that the funding structure of an organisation should not be taken into account when assessing the validity of its output? I pointed out that one should discount corporate funded conservative think tanks because their output is unlikely to be objective. You seemed to argue against this by stating that the Sierra Club and Now are also biased because of their funding structure, which is an odd reply since it appears to reinforce my point. In your second reply, you then seem to argue that funding structures are irrelevant.
9.30.2005 4:11pm
42USC1983 (mail):
I read well over 1,000 opinions a year. Each year I find less than 5 that I consider activist. Before concluding that a case is activist I do the following:
1. Read the full opinion (this includes the concurring and dissenting opinions).
2. Read the relevant precedents.
3. Ask myself: "Could a reasonable person, based on the precedents, have reached a different conclusion?" If yes, then I do not call the case activist.
4. I then read the briefs (if they're available). Sometimes judges make mistakes because the case was not adequately brief. Hell, if the advocates don't spot the issues, why should I assume the judge and his law clerk will?

Only then (and even then, it's with much hesitation) do I comfortably call an opinion activist. Sometimes I wonder whether people who so willingly call cases activist even complete step 1.
9.30.2005 4:21pm
Cecilius:
Firstly, sample selection bias is irrelevant in showing that the general public is likely to know more about well publicized matters (Supreme Court cases) than matters that are not well publicized (debt &equity markets). The general public also likely knows more about Rock Star INXS, the baseball standings, and which celebrities are dating each other than they are about debt &equity markets, for the same reason. Which people choose to speak about these things publicly is also irrelevant. Nor is it very probative. Although I know a fair amount about football, I'd probably be reluctant to talk about it with a college football assistant coach as I would be afraid of embarrassing myself or simply not be interested enough to talk about it at all at the time. But I still have a knowledgeable opinion about whether a team is likely to improve its defense by switching from a 3-4 to a 4-3. Even if I did not broach the subject with Coach Commenterlein at a cocktail party. My point was to show that I was a little surprised at how much press controversial 'judicial activism' cases get and how well people seem to follow them without formal legal training. The point is also that these opinions should not be dismissed as ridiculously uninformed or the result of nefarious conspiracies between FoxNews and corporate interests.

Secondly, both references to corporate funding of left-wing groups show that critics only raise the specter of corporate funding to impugn 'right-wing' conclusions. Nobody's ever called the Sierra Club a bunch of corporate whores but corporations do contribute to them. Yet, many corporate-funding critics do not find them biased. Claims of judicial activism by corporate funded think tanks should stand or fall on the merits. You can not point to who is writing the checks and then smugly claim that you win the argument by forfeit - so no it has no impact on the think tank's output whatsoever. A think tank may be right on something and you may be wrong. That ExxonMobil contributed money to them means nothing - you still have to win the argument. If you misread the first posted comment as inconsistent to this point, either due to sloppy writing on my part or this forum's poor effect on communicating sarcasm, I apologize (that's actual sincerity, not sarcasm this time).
9.30.2005 4:35pm
Guest2 (mail):
Adam K. said, "Hell, quite a lot of people who are actually trained to understand these things don't really understand them."

That is so true. Most lawyers seem to be incapable of clearly explaining their role and why the legal system is the way it is.

Anyway, polls like this are meaningless unless the same questions are asked repeatedly over a long period of time.
9.30.2005 4:38pm
TomH (mail):
I see that the conversation has boiled down to an argument about the public's knowlege of cases from the US Supreme Court, while the original topic seems to be more related to judges in general, which I took to mean all of them, from the trial level on up.

Of course, if any level, the US Supreme Court (an much the same applies to top level state courts) is going to be "activist" they set ultimate policy and are not bound by a higher courts.

Frankly, I am involved with local politics in New York, where trial court judges are elected. I campaign for judges here and the utter ignorance of the general public as to who their judges are or their merits with respect to my local trial courts is astounding. It is a stroke of luck if, in late October, a voter even knows their name, or any prior work by that judge.

Any prejudices that people might have toward judges in general is not from specific example on this level, but from blaring news or opinion stories.
9.30.2005 4:41pm
Houston Lawyer:
During my lifetime the courts have ruled at various times that the Constitution provides:

Criminals that volunarily confess without being read their rights may not have those confessions used against them.
If a police officer screws up when requesting a search warrant, the evidence he finds must be suppressed.
Prayer in public schools is not allowed.
Abortion on demand is a constitutional right.
Sodomy is a constitutional right.
Pornography is a constitutional right.
Discrimination against black people and women is prohibited, but discrimination against white people and men is OK.
The government can take your property away just to give it to someone else.
The death penalty is unconstitutional (no now the death penalty is OK, but not for the mentally challenged or for 17 year olds).

I could go on, but you get the picture. Almost all laymen are aware of these rulings and that they have nothing to do with the Constitution that they learned about in school. The real question is "who are those people who have high regard for the judiciary?"
9.30.2005 4:44pm
David Berke:
42USC1983,

1,000 opinions a year? Assuming that's true, I think you need a new hobby.
9.30.2005 5:00pm
Scipio (mail) (www):
anothereugene,

Not only is it not recent (since before I saw the light and became an anarcho-syndicalist I spent my life around the VRWC, where this mantra has been in full effect since before I was born in 1976), but it's not Rovian, and, fundamentally, lots of people in flyover country have believed this for years.

The fact that laypeople don't understand the judiciary in the way that lawyers and judges do certainly leads to confusion and anger. And the issue is not a matter of elitism, but of jargon. As David Mamet famously wrote, "All jargon is a conspiracy of the priesthood against the laity." While the exclusionary rule may be rightly described to a confused layperson as a technicality, it's a very important technicality, and it should be the role of legal professionals to make legal decisions and language less opaque.
9.30.2005 5:01pm
markm (mail):
"The American people believe the law belongs to them and that they understand it, even though they don't understand it as well as they think."

One of the fundamental principles of our system of government is that the law does belong to the people. Yet the layman is now looking at a system of laws that is utterly incomprehensible to anyone who hasn't spent several years studying it, and is often quite debatable even to the experts. Furthermore, the layman is responsible for obeying the law - even when those enforcing it aren't sure what it means, either. (What is the error rate of the IRS help line?)

So who is responsible for this mess? That is quite clear - lawyers. Lawyers in Congress pass laws that no person could have read all the way through in the time allotted between the last changes and the final vote. Lawyers argue over their meaning, with another lawyer elevated to a judge presided. And even where the text of the law is quite simple and plain, such as most of the US Constitution what finally emerges from the courts is often only tenuously connected to that text.
9.30.2005 5:05pm
Joe Sixpack:
Several people have now mentioned how "uninformed" the survey respondents must be. I would love to see a poll that asks a few basic-knowledge questions along with opinion questions, and then cross-tabs them. What if -- the horror! -- it turns out that the citizens who are outraged at the judiciary actually are the BETTER informed ones, who are reading about cases in the courts and the outcomes, and are even reading the longish excerpts in some papers, if not the whole opinions? What if the ones who are more satisfied with the judiciary are the ones who have no idea what's going on, and fail the Schoolhouse Rock test?

If that were true, that would mean that more awareness will lead to MORE disenchantment. Oh no! THEN what would the ABA and academy say and do?

Obviously, it would mean that the citizenry's "awareness" is skewed by Fox and other Rovian plots, and we need to control how these cases are presented to the unwashed.

I can't give any hard data on how the knowledge issues and opinions would align, but I can tell you anecdotally that many laypeople I know were upset about Kelo -- upscalers, working class, whatever -- and they knew pretty much about the case and the details, and even the arguments pro and con. The same has been true of many cases and situations over the years -- the more knowledgeable folks are the more upset folks.

Blogs, and the Net generally, have contributed to this, in my view.

So the ABA will be gnashing its teeth even more in coming years . . .
9.30.2005 5:06pm
Scipio (mail) (www):
Actually, I misquoted Mamet; he wrote "All jargon is a conspiracy of the elect against the laity."
9.30.2005 5:07pm
Dave G:
Within the last couple of years, judges in (IIRC) at least three states have declared that gay marriage is a fundamental right. They did this in spite of numerous legislative acts against the practice, in spite of numerous initiatives proposed and passed against the practice, in spite of numerous polls showing strong opposition to the practice, and in spite of the fact that a mere twenty years ago the very idea that gay marriage was a right would have been a punchline, not a legal opinion.

From the point of view of a law professor, the rulings in favor of gay marriage may depend on intricate and nuanced applications of the Equal Protection clause, with a side of Privacy and a garnish of Full Faith and Credit. From the point of view of pretty much everyone else, those rulings pretty much boil down to Judges Pulling Rights Out Of Their Asses.

Add in similar dis-satisfaction with Kelo, the overwhelming distaste with the use of foreign rulings in U.S. legal proceedings, and probably some lingering disgust over judicial actions on both sides in the 2000 election, and I see nothing even slightly surprising about the survey's findings.

(n.b: I support gay marriage from a policy point of view. I view the program of imposing gay marriage judicially as stupid, counterproductive, and basically evil.)
9.30.2005 5:16pm
Aultimer:
When did the ABA start doing push polls? Perhaps this is an attempt to get Carl Rove to let them back into the nomination process.
9.30.2005 5:17pm
Public_Defender:
Almost all laymen are aware of these rulings and that they have nothing to do with the Constitution that they learned about in school.


"Nothing to do with the constitution that they learned about in school"? That shows that they really don't understand the constitution or that their education was lacking.

You can disagree with a decision. You can say it's an incorrect interpretation. But if you don't understand the constitutional arguments you disagree with, you don't understand the constitution.
9.30.2005 5:24pm
unhyphenatedconservative (mail):
"Yeah, that's what I said.

I'm not sure how what I said differs from someone commenting that more than half of the public has paltry understanding of calculating the structural integrity of bridges, microbiology research methodology, or other specialized fields. Of course, in those areas, people might be willing to admit they have no clue what they're talking about, whereas with politics everyone has to have an opinion, informed or otherwise."

1. You assume that someone must have the intricate knowledge of caselaw taught in law school in order to have a valid opinion on the law and the Court's actions. That is not true. People can easily understand a court's ruling in a case such as Kelo, when the ruling goes directly against the language of the Constitution. Ditto for "finding" rights in the Constitution that had successfully hidden for centuries until today's brilliant jurists tumbled onto them.

2. Your statement also clearly states the exact reason why people have such anger at the court's when you reference everyone having opinions about politics because that is precisely what the Court has done for far too long. The Court has departed from deciding the law and has entered into the political realm, taking major policy decisions out of the hands of the people and their elected representatives. As political actors, those breathing the rarified air of the law should have every expectation that the people will demand accoutnability from judges.
9.30.2005 5:56pm
Penta:
Concilius:

I'm tempted to wonder...What would the reaction of higher courts be if a federal district judge dismissed a case on the sole grounds that "while I could rule on this, I won't. Take it to the legislative branch."?

That seems like such an obvious thing to do on various issues, particularly current hot-buttons like abortion and gay marriage. Why isn't it done?
9.30.2005 5:58pm
aslanfan (mail):
It’s interesting that everyone seems to assume that those among the sweaty mob who are angry at the judiciary are motivated by Kelo, Lawrence, etc. Do you think perhaps a small fraction of those voicing frustration with the courts are doing so because of Bush v. Gore?
9.30.2005 6:10pm
42USC1983 (mail):
People can easily understand a court's ruling in a case such as Kelo, when the ruling goes directly against the language of the Constitution.

Really? All you'd need to do is pull out the pocket Constitution? Wouldn't you have to read a couple articles dicussing the original meaning of the public use clause? Or, wouldn't you at least need to read a dictionary from the era? How can you know, by reading "public use" what public use means? If you can't cite to anything other than, "It means x," with the support for that proposition being, "Because that's how I read it," you're behaving like those activist judges.

Anyhow, if you were a Supreme Court justice, what would your analytical method be? I'm not being snarky. I'm really curious to see how people who didn't choke on musty air in law school would decide these things. Let's take Kelo for an example.
Step 1. Read the Constitution.
Step 2. [Please, take it from here.]
9.30.2005 6:17pm
Tom Perkins (mail):
Public_Defender (and 42UCS1983), the winners of Kelo made an unconstitutional argument and a majority of the Supreme Court screwed up and agreed with them.

Examples of judicial activism:
1) Roe v Wade; there is no federal right to privacy which creates a right to murder with no threat of prosecution, and it is the job solely of states to define murder within their jurisdictions, provided they do not base their definition on race, previous condition of servitude, et al. The Supreme Court was activist in Roe v. Wade.
2) Kelo v Ct.; "public use" and "public purpose" are not synonymous, and the Supreme Court screwed up and was judicially activist to affirm it to be so. The practice of previous years and decisions of previous courts should have been overturned, and the Constituion thereby better respected.
3) Lawrence v Tx. There is no enumerated right to sodomy in the Bill of Rights. Therefor the 14th says nothing about it. If the people in the state of Texas have in their constitution granted the state the power to criminlaize sodomy, then Texas can do it. To decide otherwise is judicial activism.
4) Gonzales v. Raich, yes, Scalia was an activist judge to uphold the federal enforcement of marijuana laws in this case, since the national government has no authority to criminalize any recreational pharmaceuticals in the first place. The interstate commerce clause is clearly intended to permit Congress and Congress solely to set tarriffs and duties, etc., on trade that crosses state boundaries, and that power extends solely to setting such trade impediments. It is conceivable it could be constitutional for Congress could set the cost of moving a pound of chronic across state lines at $10,000,000.00 a pound*, but it can't prohibit it, absent an amendment authorizing that. Congress has no power to regulate in any fashion the production of, trade in, or use of MJ within a state, neither for that matter has it the authority to regulate the production of machine guns or other weaponry within a state--US v Stewart (a blind pig finds an acorn once in a while).

*Substantive due process seem a quite reasonable doctrine, and not out of line with any constitutional principle. However, what some people have called "substantive", I would call inventive.

A judge is being "activist" when they make a decision flatly contradicted by the text. They are being activist when they fail to strike down a law which is flatly contradicted by the text. They are being activist when they strike down a law which flatly is in keeping with the text.

If genuine ambiguity is present about the meaning of the text, then a decision which is consonant with the views of the framers is not activist if the approach of either party is novel and no guidance is found the writings/statements of framers and first principles are seen to used in arriving at a resolution. Such first principles CAN be elided from the period of the Founding and writings of the framers without invention or airy wisps of auras, penumbras, or fairy constructions (or for that matter, ghosts of departed quantities).

An example of such a first or meta principle is the idea that supermajorites are required to authorize changes to the Constitution, so if a novel argument comes along which genuinely cannot be addressed in any other way, then the resolution arrived at must be one with which a supermajority is in agreement, and if juries, when asked to uphold laws enforced pursuant to such a resolution, nullify so commonly as to show there is no such supermajority, then courts are bound by the supermajoritarian principle to revisit the issue, even issuing an injunction, and strike down the law if a mere majority approves of it.

Yours, TDP, ml, msl, &pfpp
9.30.2005 6:49pm
Tom Perkins (mail):
"are seen to used" /= "are seen to be used" Sorry, TDP, ml, msl, &pfpp
9.30.2005 6:53pm
Clayton E. Cramer (mail) (www):
If you want to understand the rage, look at Romer v. Evans (1996). The Supreme Court decided not that the legislature had overstepped its bounds, but the people--who passed a constitutional amendment limiting the authority of local governments to include homosexuals in antidiscrimination statutes--didn't have the right to do that. There is no arrogance higher than this: to tell the people of Colorado that they do not have the legal authority to amend their state constitution on a subject where the U.S. Constitution clearly has nothing to say.

If equal protection were applied consistently to all the laws that we have in this country--and not just pulled out when the Supreme Court wants to protect its pet minority group--then there would be an enormous number of laws that would have to go away.

In states like California, some citizens are more equal than others. Big political contributors or celebrities (even one with a history of violence, like Sean Penn) want a concealed weapon permit? Sure. Ordinary person--even someone who lives in a rough part of town, and probably has more to fear from attackers than Sean Penn--no way.

There is a difference: the Second Amendment explicitly recognizes a right to be armed, and if you want to make an "unenumerated powers" argument like that used in Griswold to defend equal issuance of permits, you could. There is no explicit right to engage in homosexual activity, and there's no unenumerated powers argument that would work, since sodomy laws were present in every state in 1791, and in 1868.

It is precisely because the majority of judges aren't playing straight that they are held in such contempt by the peasants who pay their salaries and pretend that we elect the lawmakers.
9.30.2005 7:22pm
memberofthemasses:
Could the growing dissatisfaction with the judiciary stem from the fact that the courts have been misused as an agency to push political agenda? Over the last fifty years or so, hasn't there (as Houston Lawyer points out above) been an exponential growth in the number of instances where politically oriented groups have attempted to circumvent majority opinion and legislation or expedite issue agendas by utilizing the courts as a de facto branch of the legislature?

The real question, however, is: "Who has allowed such misuse?" The real answer is unnerving to those in the legal profession - "We have beheld the enemy and the enemy is us."

An example... States and the national Legislature pass laws related to illegal immigration. Such legislation is supported by the majority. Special interest groups go to the courts challenging the "constitutionality" of the legislation. The answer from the courts - rather than looking to the federal government's constitutional mandate to 'defend' our borders, rather than recognizing the very definition (originalist AND modern) of State sovereignty, and rather than focusing on the word 'illegal' instead of the plantiff's dialectics about immigration as a whole - is that virtually all such legislation is "unconstitutional" based almost exclusively on an interpretation of the Constitution's preamble regarding how "We the People...to ourselves and our posterity" is defined; i.e., everyone in the World is entitled to constitutional rights and benefits.

When the public becomes outraged over such a decision, what do they hear from the judiciary? The same thing as is seen on this thread. They are uninformed and in need of education regarding the "general welfare" clause. The judiciary is "above" public opinion and not "answerable" to the people; despite the fact that the judiciary is ostensibly a branch of the government which is of, by, and for the people. Then, if pushed, the public is regaled with a jargon filled, obscure case law referenced, dialectic debate of originalist vs. non-originalist 'interpretation' of a document written in, what was, the common language.

As a result, what the people perceive is a judiciary that has not only arrogantly divorced itself from the public, but has separated itself from reality in favor of an abstract, theoretical world that fails to meet the definitions of science, religion, or common sense.

Divorced itself from the publc - we are NOT answerable to the 'tyranny of the majority' nor are we concerned with the ramifications to the people in that we must judge solely based on the limited information in front of us at this moment, with no consequences to ourselves as individuals or to the judicial branch as a whole regardless of the effects of our decisions, practices, and disconnect. Abstract, theoretical world - "The LAW" is our overriding concern, not the cause/effect realities to the laity, not the black &white syntax of the Constitution, but to a pageantry of oratorical redundancy and technical nuances which are primarily derived from philosophical interpretation rather than literal readings. Does not meet the definitions of science, religion, or common sense - too many conflicting and contradictory laws/interpretations thereof; though "the LAW" and "the Rule of LAW" has come dangerously close to becoming an overriding, nebulous abstraction to which we pay homage and to which we pledge our subserviance bordering on the exclusion of all else, there is still no consistency of deity which is identifiable (which is part of the problem when one focuses solely on 'the process' created to serve such a conceptual construct); common sense - if it ain't understandable to the common person, what sense does it make.

Do I wish to see the judiciary responsive to opinion polls? Absolutely not. Am I in favor of greater leaning toward constructionist and originalist arguments? In part. Do I recognize the difficulties judges and lawyers have in addressing emotionally charged, broad-reaching and nuanced-filled issues compounded by conflicting/contradictory laws and legal precedent? Definitely. Ultimately, however, do I embrace the absolute need for a return to common sense, common language, greater transparency, simplified procedure, more accountability, and greater exigency in relation to effects in our judicial system? Yes, for somehow, I thought that was how it was set up in the first place.

Of course, I might not understand given that I, at least at one time, was a simple, uninformed, alternative thinking, misguided, ignorant, troll-like member of the masses.
9.30.2005 7:36pm
42USC1983 (mail):
Okay, I get it. Some of you do not like certain outcomes. But the judicial process is a lot like math: you must show your work. So what is your formula/analytical method/etc. to reach these conclusions? Please, show your work.
9.30.2005 8:13pm
David Berke:
Clayton,

(1) Regarding Romer: As a strict constitutional matter, completely ignoring any issues as to the merits, what difference does it make whether the Constitution mandates overturning an act of the legislature or overturning the act of the people? (Unless, of course, there was a supermajority passing an amendment to the US Constitution.) Please do not respond regarding the lack of merit of the decision, as the merit or lack of same is irrelevant to this issue.

(2) You also said: In states like California, some citizens are more equal than others. I can only hope this isn't meant to be taken seriously. In EVERY state, some citizens are "more equal" than others. It's the way people work. Some people are corruptible, and some people may be influenced. Either way, the wealthy and powerful are always going to be "more equal."
9.30.2005 8:47pm
Jeremy (mail):
42USC1983,

Here's some work for you.

The 14th Amendment says that no state shall "deprive any person of life, liberty, or property, without due process of law." When this amendment was ratified, most of the United States probably believed that the unborn were human beings and therefore persons. At the very least, it was an arguable point whether the unborn were persons; it remains an arguable point today. Laws prohibiting abortion were enforced for more than 100 years after the ratification of the Fourteenth Amendment and almost 200 years after the ratification of the Bill of Rights.

But the Supreme Court of the United States has told us that the Constitution itself definitively states that the unborn are not persons and can be killed at least up until the third month of pregnancy. The Supreme Court of the United States has told us that language in the Constitution compels this result and that any law that seeks to provide protection to the unborn conflicts with the Constitution and cannot be enforced, a conclusion that would certainly be disagreed with by the writers of ALL of the words in the Constitution and the relevant amendments and the vast majority of the ratifiers of those words.

Whether you are liberal or conservative, pro-life or pro-choice, libertarian, communist, or anything else, no intellectually honest person can credibly argue that the Constitution actually does what the Supreme Court says it does in the context of abortion.

This is a good example of the problem. Judges exploit the natural ambiguities in human language to reach results they favor, in spite of the meaning attached by either the drafters or those who voted for the text. Those in the legal profession, like me, see this all the time. The fact that there might be "more than one rational interpretation" is legalese for "I have a scintilla of evidence in favor of my preferred outcome, so that's what I'll pin my decision on."
9.30.2005 8:59pm
42USC1983 (mail):
Jeremy, thanks for the response. But I still don't see an analytical method. That is, a system by which courts can reach the correct conclusion. Like Algebra. Perhaps we can write one together. You wrote:

Laws prohibiting abortion were enforced for more than 100 years after the ratification of the Fourteenth Amendment and almost 200 years after the ratification of the Bill of Rights.

Is judicial acquiescence a form of stare decisis? Or is judicial, legislative, and executive acquiescence evidence we examine in order to determine the original meaning of a term? Is it conclusive evidence? What if judges acquiescence in the face of laws that violate what (seems, anyway) clear textual edicts?

Also, I could easily substitute "[l]aws prohibiting abortion were enforced" with "[l]aws enforcing racial segregation were enforced." Does this mean that the Equal Protection Clause does not prohibit racial discrimination? How can we distinguish proper acquiescence from improper acquiescence?

Again, I am asking these questions in good faith. I have more questions than arguments because, quite frankly, I don't have it all figured out yet. I used to think I knew the One True Way. Then I really started studying these issues. It's a lot harder than it seems.

So, what's our method? How much weight should certain evidence be given? Is it relevant that the same Congress that enacted the 14th Amendment also kept D.C. schools segregated?
9.30.2005 9:27pm
memberofthemasses:
42USC1983: This is precisely what I meant when I said there was too much of a disconnected focus in today's judicial system on "the process." You want a methodology, case citation, or legalese 'reasoning.' Fine. Such technical aspects are necessary components to any rational and accepted 'process.'

The problem is that it is totally divorced from the realities underneath both the process itself and the impacts of the outcomes it generates. Deconstruction of language, particularly when the language itself is replaced by incomprehensible jargon, case citation, and nebulous or unique definitions, is not a 'methodology' - it is a tactic. Focus on method, evidence, specific technical issues of a specific case, is not a 'methodology' - it's defense mechanism used to ignore the implications and the effects we create for ourselves and the people at large by ignoring reality and focusing on 'the process.'

In the end, Science itself has been unable to derive a Grand Unified Theory; and that branch of human endeavor has a generally recognized 'method' that is, at least, paid a modicum of deference by its practitioners. Why would you think that a concentration on 'method,' 'process,' whatever is the priority? Isn't the purpose of 'the process' to strip away all irrelevancies; to divest the situation of errors, misrepresentations, and misperceptions; to clarify the positions of the protagonists in an adversarial setting in an effort to arrive at a 'truth' or 'decision' vis a vis the issue at hand which is consistent with the laws (also known as 'social norms') created, accepted, and referred to by the very people we claim are not an intrinsic part of 'the process?' At what point does "the LAW" and its subserviant process become more important than the people who created the "LAW" to serve them?

Put another way, if the people don't like the outcome(s) and feel that such outcome(s) were not the intent of "the LAW," perhaps our methodology, or our focus thereupon, is flawed. Maybe it's time we returned to the basics of our laws (the Constitution) and stopped shoehorning political agenda, philosophical leanings, and ecumenical-like emphasis on rites of 'process' or 'method' into interpretations of contemporaneous paradigmatic ethos loosely referred to as "the LAW."
9.30.2005 10:06pm
TDPerkins (mail):
42USC1983, this serves me as a proof of the illegitimacy of Roe v. Wade to a superfluous number of significant digits.

1) Killing a human being for no good reason is murder, and convenience isn't good enough in any legal code in the US I know of.

2) Absent the crime taking place on federal property, questions of murder are in the jurisdiction of the states.

3) Historically, states usually made the deliberate end of a pregnancy some flavor of murder if it occurred after the "quickening", the mother could feel the fetus move, this status was maintained after the length of the human pregnancy was established to be about 40 weeks--and in some cases was extended to conception to criminalize the deliberate end of pregnancy throughout the pregnancy.

4) While privacy from legal inquiry is absolutely in the constitution, via the 5th amendment, it would be silly and perverse to assert that there is a privacy right to murder.

5) Therefor, no privacy right can be extended under the federal constitution to protect a right to end a human pregnancy, unless you can sell an argument there is a privacy right to commit any murder, not merely an abortion--or you could try to show the federal governments has jurisdiction over a) defining the beginning of a human life or b) defining what is and is not a murder.

With what contrary "math" is Row v. Wade supported?

Yours, tDP, ml, msl, &pfpp
9.30.2005 10:32pm
TDPerkins (mail):
"With what contrary "math" is Row v. Wade supported?"

Heh. Roe, Row, Roh your boat...
...damn I'm tired. G'nite y'all.

Yours, TDP, ml, msl, &pfpp
9.30.2005 10:42pm
David Berke:
memberofthemasses,

Why is it okay for quantum physics to use specialized jargon, but not attorneys? Is it okay for economists, psychologists, or investment bankers?

Every field involving expertise develops "jargon." Not for the elitist purpose of excluding the masses, however. It is in order to facilitate efficient and meaningful communication. By adopting terms such as "res judicata" and "textualism," we make sure that everyone is on the same page, arguing about the same things. Sure, we could avoid using these phrases, but then everyone would have to use a lengthy description every time the issue came up. Furthermore, any minor differences in wording the description could be seen as further confusing the issues.

Shockingly enough, I think that someone who has devoted their life to the study of something generally knows more about that thing than random people who wish to offer an opinion. I do not presume to tell plumbers, electricians, doctors, or accountants that I can do their job better.

The laws are not social norms. The laws are an attempt to bring about conformity in behavior which will closely resemble certain key social norms. But to the very large extent that social norms cannot be described, they are not part of the law.

Furthermore, the fact that the people do not like the law is more or less irrelevant. If they think the law should be different, throw the bums out and find someone who will enact laws they like better. If they wish to overrule Constitutional rights, let them form a super-majority and amend the Constitution. However, forcing the law and our Constitution to bend with the will of the masses would render our constitutional freedoms and principles completely worthless. The Constitution does not enshrine the right of the people to changes its interpretation, except by amendment.
9.30.2005 11:24pm
42USC1983 (mail):
there was too much of a disconnected focus in today's judicial system on "the process."

Masses, are you advocating a legal system lacking process or method? If there isn't a judicial process, there is no way to to determine whether an answer is right or wrong.

In the end, Science itself has been unable to derive a Grand Unified Theory

No, but there is a scientific method and scientific processes. What's your legal method? I gave mine, above. How I determine whether a lower court is activist. Is mine flawed? How can it be improved? Does it "work," where work means "brings us closer to the truth"?

Anyhow, it seems obvious that you can't come up with a process by which a judge can adjudicate. It also doesn't seem like you're trying to create one. Basically, you disagree with some opinions, and therefore those opinions are wrong. That's not method. It's the same results-based reasoning you accuse judges of engaging in. Ciao.
10.1.2005 12:25am
memberofthemasses:
David Berke: If laws are not social norms, then what are they? If conformity to group accepted behavior patterns is not conformity to social norms, then I must ask what the law represents? If the law was not intended as a codification of what a given group considers to be acceptable (i.e., "normal") behavior to which individuals must conform to be an active and contributing member of said group, then what is the point of codifying laws?

I quote Webster's definition of law: "A rule of conduct or action, recognized by custom or decreed by formal enactment, considered binding on the members of a nation, community, or group; a system or body of such rules." If the law does not represent the customs or "norms" of the group, then what do they represent and why would said group ever wish to formally decree and bind themselves to that which does not reflect what they consider to be acceptable?

As far as jargon, you claim that it is ""to facilitate efficient and meaningful communication." Meaningful communication between who? Who needs to be on the "same page" when communicating? Are not "the people" as a whole, not just the legal profession, responsible for observance of, obedience to, and knowledge of the law? If ignorance of the law is not considered a defense, then how can one be held responsible for knowledge and understanding of the very thing which you claim they are incapable of knowing and understanding? And, if you reply that this is the reason people need lawyers, then I must point out the inherent "elitism" in such an observation since it is the rough equivalent of the phrase - you get as much justice as you can afford.

42USC1983: I do so enjoy a good conversation when one person must rely on nonsequiter and extremism to make their points. First - what part of government of, by, and for the people does an unruly mass make. A government and its codified laws are SUPPOSED to be a reflection of the people's desire to live and operate as an identifiable group. Yes, there will and always should be a tension in the codification, application, and enforcement of these laws; thus, our adversarial system. It is when the "government" develops an identity separate from the people it governs that you abandon the tenets upon which this nation was founded; something supposedly precluded by the Constitution itself.

So, your retort rests on an extreme example - i.e., since I do not suggest a "method" of law which you recognize, at least in the form presented above, then I must advocate anarchy of the masses. Not only does that not follow from my statements, it does not even follow from your own.

Gentlemen, this is first semester LOGIC. A valid argument can be made based on a false premise. That does not, however, mean the argument is TRUE, it simply means it is valid.

Your arguments are premised upon the assumption that the "LAW" is a field, like quantum physics or medical science, which is BEYOND the general public's ken. (And, perhaps, as it currently exists, it IS; since our current incarnation seems more based in the propogation, defense, and autonomy of the profession itself than in the expression of a people's desire to live and operate together as an identifiable group.) This is both a FALSE and DANGEROUS premise. If we were to accept your arguments as valid based on this premise, then we must also accept the premise that we do not have a system designed to serve the people. Thus, we have a de facto system to which the people are not only subservient, but one to which they cannot seek redress or assistance for they are, by your definition, incapable of functioning within it.

It seems to me that there were similar philosophies espoused by the Church of Rome and the King of England. Mass was read in Latin. The Bible was not available in printed form or in the common language. The normal penitent was considered incapable of an individual relationship with the Almighty in terms of understanding His will. Same with the Colonies. They needed the guiding hand of the sovereign; who at his discretion could 'interpret' or 'create' the law as he wished. In fact, he was "the LAW" and the very incarnation of "England." At least until Martin Luther and the Rebels, along with their anarchist masses, said - "No, we don't think so."

This is why we have a document which starts by saying "We, the people..." It then goes on to express the people's GOALS - form a more perfect union, establish justice, etc. In achieving these goals, the Founders then enumerated certain, specific rights which must NEVER be violated and are secured to the people by themselves and their posterity, the Bill of Rights. The Bill of Rights being a systematic reflection of the broader, and somewhat more vague, "declaration" of certain self-evident [note that term] TRUTHS (or 'premises') - all men are created equal and they are endowed with certain, unalienable rights, among which are Life, Liberty, and the Pursuit of Happiness.

Unalienable right to Life. Seems pretty clear. As has been suggested, how does this unalienable right to Life square with the legal profession's confusing array of interpretations; particularly when the language used by the Founders is pretty self-evident and understandable to the PEOPLE and the legalistic jargon of Roe v. Wade is not?

Unalienable right to Liberty. There is a difference between freedom and liberty. Freedom is a state of mind. Liberty is a physical state of being. Thus enumerated, your unalienable right to Liberty allows for freedom of and from religion, freedom of speech, etc. Thus, freedom is only limited if we THINK it is. Problem: at what point does your liberty to pursue the freedoms enumerated to their fullest extent become limited by what society considers acceptable or normal? Perhaps there is a reason why the Founders used the term "freedom" when enumerating these "rights" and used the terms "right," "shall not," "shall," "no," et al. when enumerating a specific, tangible liberty such as the right to bear arms, the right to be secure in their persons, etc. Therefore, the laws which society makes seem to be the codification of the limits to our liberty; while the Constitution limits such codification to certain parameters. Maybe?

Pursuit, not possession, of Happiness. Not everyone is going to be happy. But, that does not mean that everyone must be contained, restricted, or penalized by laws designed to acommodate the perceived happiness of a select few at any given moment in history; whether they are the elite, an ethnic minority, the affluent, the majority, or advocate of a particular lifestyle. In fact, a condition of unhappiness, with the freedom AND liberty to pursue that which you perceive might make you happy, is actually the expression here.

Thus, the TRUTHS upon which the Constitution and the Declaration of Independence, our founding documents, were based, were considered to be SELF-EVIDENT to WE, THE PEOPLE. It was efficient and meaningful in the way it communicated to the least educated and the most elite simultaneously. These documents were not replete with jargon and were deliberately constructed to be understandable by the mob, masses, uneducated, poor, intellectual, and even lawyers.

There is your methodology; one that I have alluded to above. It is a return to an understandable form of law and a system which represents the people and what they consider to be appropriate within the limitations of the unalienable rights enumerated within the founding documents. If you wish to perceive it that way, it is a return to a form of law based on common sense or, more accurately, common understanding; not a "nuanced," jargonistic requiem of obscure precedent and paradigmatic interpretation subject to the vagaries of the intelligentsia - e.g., the very system of government the Founders were attemting to separate themselves from.

So, once again, we are faced with the dismissiveness and arrogance exemplified by 42USC1983's statement that I do not seem capable or desirous of introducing a method. Why do I need to "create" a method that has existed and was codified in our Constitution? Why does it seem necessary to "create" a 'process' by which a judge is able to adjudicate using common understanding, common language, and codified laws purportedly based in 'self-evident truths?' Wouldn't that be a bit redundant? And, if this is not already what it is supposed to be - i.e., our system's methodology and process - to the point where 42USC1983 is not able to recognize it or both he and David Berke feel it is not sophisticated (?) enough, then I am forced to ask - Why? At what point did the legal profession stray from the Constitution and become "We, those who have devoted their lives to the study of the LAW and its theoretical abstractions..." instead of "We, the people...?"
10.1.2005 3:32am
Jeremy (mail):
42USC1983:

Your way to determine whether a court is activist or not is flawed, in my opinion, because it assumes that a "reasonable judicial opinion" is not similarly activist in nature.

One problem with that analysis is that authority can be found to support almost any proposition. You know this and I know this. I suppose a judicial opinion is reasonable in your estimation, and not activist, if there is some authority to support the holding. But activist courts generate authority too! So a court deciding a future case can certainly cite to an activist court's "revolutionary" decision, thus dragging the activist decision further into the "mainstream." Here's a (hopefully) non-controversial example:

The Allegheny College v. National Chautauqua County Bank, 246 N.Y. 369, 159 N.E. 173 (1927), is a famous opinion written by Cardozo. It's also total bullshit. It's the first opinion that really starts to make charitable subscriptions enforceable, though Cardozo "finds" a contract supported by consideration.

Allegheny College is an absolutely classic case of judicial activism. The legislatures of the several states are free to pass statutes holding charitable subscriptions enforceable without consideration, and some states have done this. New York had not in 1927 and Cardozo's opinion usurps the legislative function in favor of a morally correct but legally wrong outcome: the charity got the money it was promised.

So from now on, any court that wants to hold a charitable subscription enforceable can simply cite to Allegheny College, but such a hypothetical case would not be "activist" under your "judicial activism" rubric, even though the case would rest on an indisputably activist framework. That's a problem with your method: it doesn't count cases as "activist" if the authority they rely on is activist.

(Your points about wrong decisions flowing from poorly argued cases are quite well taken, however.)

Here's my definition of judicial activism:
When a court believes the law compels Result A but instead issues Result B. This often happens because Result B is more desirable to the court for some reason. It doesn't matter if Result B is "reasonable" given the precedents; if court believes Result A is legally correct, the court should give us Result A.

I think a very strong case can be made that this is exactly what happened in Griswold, Roe, Lawrence, and Kelo. I, personally, agree with the "outcome" of Griswold, that people should be able to buy contraceptives, but I don't think any reasonable reading of the Constitution provides that result. Even if a reasonable reading of the Constitution COULD give us Griswold, the BEST reading of the Constitution simply doesn't. Griswold and its progeny are therefore activist decisions.
10.1.2005 5:29am
David Berke:
memberofthemasses,

Your pen floweth over. Mine is beginning to.

I cannot see how you believe that you have in any way addressed any of the points that I made. You first ask what is the law, if not a social norm, when I specifically answered that question by drawing a distinction between an attempt to capture key elements of certain social norms, and simply social norms. Social norms are squishy and unclear; attempting to codify them perfectly would leave us with a bunch of laws that resemble the 9th Amendment. Many laws fly in the face of social norms. Of course, there's always the "who's norm?" problem.

The remainder of your comment which actually addresses me is just silly. The jargon in a given field is developed by those who specialize in that field, not by the public at large. That you even feel the need to ask the question suggests that you are not being honest. The people are as free to comment on what the law is and should be as anyone else. The mere fact that not all law is immediately accessible to average people, at least with regards to statutes, is largely because they are written through the compromise of numerous people who have objectives other than clarity. Complaint to your state or federal legislators about that.

The reason that decisions are not immediately accessible is clearly indicated above: They are written by one group of specialists that is charged with interpreting the law (judges), with the understanding that their writings will be reviewed by other similar specialists (judges) as well as those who will have to determine what conduct, in the real world, falls within its boundaries (lawyers.) Hence, jargon - for the reasons explained above.

Any reasonably intelligent lay person can figure out what the law is, if they are so inclined. But to suggest that something as complicated and nuanced as the law necessarily is (remember, by your own word, we're trying to encompass extremely vague and ambiguous social norms) should be immediately accessible like a grammar primer is unreasonable.

Oh, and the Declaration of Independence never had any legal or binding effect, so let it go. The Articles of Confederation and the Constitution in turn supplanted any meaning that may have had.
10.1.2005 5:53am
memberofthemasses:
David Berke: Your distinction between social norms and the law is interesting. In effect, you are arguing your conclusion without establishing your foundation. Again, WHY should the "norm" be considered so nuanced and complex when it is the "norm" precisely because it is commonly understood to be what is "accepted?" As you say, any reasonably intelligent adult should be aware of and be able to behave according to what is considered acceptable or "the norm" in a given group or society. Why 'make a mountain out of a molehill' with complex jargon and the very "squishy and unclear" vagaries of extrapolation?

Again, I love the tactic in any debate where one participant must use exaggeration, red herrings, non-sequiters, extremism, or straw men to attempt making a point. When you throw in "who's norm?" as a psuedo-intellectualist appeal to reason, one is but left to sigh. Weren't we talking about the accepted norm OF THE GROUP or SOCIETY? I suppose you COULD argue the question "who's norm?" based on an issue of scale; local, state, or federal. But isn't that why those powers not specifically enumerated to the federal government are reserved for the states?

As for your rationale of "needing" jargon, again, WHY? I know plenty of reasonably intelligent individuals, including a plethora of lawyers, who cannot make heads or tails of many statutes. We can't even agree among ourselves, people who presumably understand the jargon and are familiar with the precedents; note this board. How do you expect the untrained to work through their complexities?

Again, if ignorance is no defense and the statutes, along with the legal decisions of judges regarding those statutes, are intended to govern the behavior of all individuals in a society, not just those annointed few of the judiciary, then we are left with the conclusion that you favor an elitism of the judiciary. Your argument leaves the common man, no matter how reasonably intelligent, who is not intended to understand what is written, reliant on 'word of mouth' or generic summations written by those individuals who, themselves, are not necessarily trained or intended to understand them. Meanwhile, the judiciary is left to simply say, at their convenience and dependent on their individual interpretation or polemic: "Sorry. But you simply misunderstood. THIS is what it means at this moment, in this court."

Could this be the very rationale which led survey participants to agree that "judges are "arrogant, out-of-control and unaccountable?"

As for my commentary being "silly..." Let's see if I understand your argument. People are free to comment on the law, which they aren't intended to understand because it is written in jargon for the benefit of the judiciary and is often conflicted, unclear, and inaccessible because it is written by numerous people - i.e., lawyers attempting to craft a document to be understood by other lawyers (e.g., judges) - and thus, you should complain to your Congressman. Put another way: People are perfectly free to comment on what they don't understand because they will be ignored by the lawyers and judges that crafted the very laws being commented on in such a way so that only the lawyers and judges MIGHT understand them. And, if you don't like it, complain to your Congressman.

Isn't that exactly what participants in the survey were doing? Which also leads us back to... Could this be the very rationale which led survey participants to agree that "judges are "arrogant, out-of-control and unaccountable?"

Uh, I and many others choose not to let go of the Declaration in that it is an essential document indicating the intent, rationale, and legal argument behind the construction of the Constitution. If we were to 'let it go,' then what is the legal basis for most civil rights legislation; i.e., all men are created equal. Blacks were definitely NOT considered to be among WE, THE PEOPLE at the time of the Constitution's framing. Women did not have the vote. Were they considered among WE, THE PEOPLE? From where do we draw the authority to have even framed the Constitution if we had not declared our independence from a sovereign power?

As a technical, citable precedent, you may be right in that the Declaration may have no legal or binding effect. As an essential document in understanding our culture, society, the social norms, and the laws representative of and derived therefrom - No, I don't think I'll let it go.
10.1.2005 7:11am
dk35 (mail):
Has it occurred to anyone that people aren't mad at judges because of the actual decisions they make, but because the republicans and fundamentalist Christians have manipulated the truth to whip up hysteria against judges?
10.1.2005 12:43pm
therut (mail):
I would like all the people who are now using the term "fundamentalist" Christian to define the term. I'm really getting a bad feeling about this new scapegoat term being thrown about in the USA. Why don't we start throwing about "Socialist" christian, "Liberation theology" christian and "Theological Liberal" christian while we are at it or how about we create a new one "Neo-marxist"Christian. Which groups are putting politics with their theology or mixing church and state?????????????
10.1.2005 4:08pm
cynical2L (mail):
I've having trouble understanding the comparisons of law professors and judges to scientists.

Lawyers are not experts in the same sense that scientists are; the law is a mishmash of procedural rules and value judgments whereas science is about objective truth. Liberal law professors and judges substitute their own value judgments for those of the majority, assuring the majority that the need to protect "rights" outweighs the need for the government to reflect the will of the majority. Respect for the system will allow this to go on for a long time, but eventually the general public will wake up. At that point, either we'll see conservative groups similarly repackaging their policy preferences in rights talk, a general dismissal of the legal system as politicized, or both.

I think that's what's happening now.
10.1.2005 4:49pm
Medis:
According to this recent Gallup Poll, Republicans are MORE likely to approve of the Supreme Court than independents or Democrats.

http://poll.gallup.com/content/?ci=18895

So, I'm not sure one can assume that the negative results in the ABA poll reflect Republican efforts ... and they may well not reflect Republican ATTITUDES either.
10.1.2005 11:07pm
Cornellian (mail):
Yeah, it's not like conservatives would ever go to court trying to overturn a democratically enacted law such as, for example, campaign finance reform - oh wait they did...

And since when did "reflecting the will of the people" to override individual rights become the conservative position? I would have thought the conservative position would be completely the reverse. Certainly the constitution doesn't provide any "will of the people" exception to the rights enumerated in it, other than the amendment process.

"Lawyers are not experts in the same sense that scientists are; the law is a mishmash of procedural rules and value judgments whereas science is about objective truth. Liberal law professors and judges substitute their own value judgments for those of the majority, assuring the majority that the need to protect "rights" outweighs the need for the government to reflect the will of the majority. Respect for the system will allow this to go on for a long time, but eventually the general public will wake up. At that point, either we'll see conservative groups similarly repackaging their policy preferences in rights talk, a general dismissal of the legal system as politicized, or both. "
10.2.2005 2:38am
David Berke:
memberofthemasses,

Your argument defeats itself. You say that I am assuming that the law is an attempt to approximate certain norms. You are assuming that the law is in fact social norms. To assume that your assumption is superior without evidence does not serve you particularly well.

Essentially, you argue that social norms are simple and easy to understand, and therefore should be easy to enact. I challenge you to present me with a meaningful social norm which could be enacted, and write the statute in the plain english you think it should be. The key thing here, is you can't write a statute which has already been written. You need to clarify something, not copy something.

Show me where I used "exaggeration, red herrings, non-sequiters, extremism, or straw men." You can use that phrase all you want (and you've used it about 4 times that I've seen in this thread), but it doesn't change anything.

As for the pseudo-intellectual knock, please keep your personal attacks to yourself. I will answer you simply. How do you determine what the norms are? Many norms vary by area, religion, ethnicity, political viewpoint, and socio-economic status. Are you going to average them out? Are you going to run polls until you find something that 50% of people reliably vote for? What do you do when there are clearly different social norms in different groups, none of which more than 1/2 the people can agree to? What do you do when social norms run afoul of Constitutional protections?

You don't understand. You actually seem to go out of your way to misunderstand. I said that statutes were written the way they were because they are the result of too many compromises among people with wildly different incentives and goals. This is furthered by a desire to cover a larger number of circumstances, resulting in more lengthy discussions, notes, sections, sub-sections, and exceptions. I never once said that they were written for lawyers and judges. You simply chose to misunderstand so you could repeat your arguments.

As for the Declaration of Independence. It is an important historical document. It preserves and explains the anger of the colonists. But, unlike the Articles of Confederation or the U.S. Constitution, it does not attempt to organize a government or precisely describe the duties of that government. So, it has no effect. If the country had thought those statements were sufficiently necessary, they would have been reflected in one or both of those documents.

btw - What's with the selective all capitalization? Do you find it to be a useful rhetorical tool to look as if you're screaming things? Does it really somehow strengthen your argument?
10.2.2005 7:36am
Medis:
Cornellian,

Indeed, and if you look at the Gallup Poll track, it seems like the one thing that really angered Republicans relative to independents and Democrats was Kelo ... where the Court FAILED to thwart the more majoritarian branches of government.
10.2.2005 9:11am
akiva eisenberg (mail):
Since when has law become "Law", the natural science or perhaps the revealed religion? Many of the arguments above center on the validity of procedural integrity in understanding the truth hidden in the "Law". There is no such thing. The United States Constitution is as arbitrary as the Nurenberg Laws, and every citizen realizes it.
It is when personal biases are blatantly injected into interpretation that people become upset with legislation by the unelected in guise of interpreting the law. When the legal profession may think that the average citizen does not recognize that this is happening, it is due for a rude awakening. There will be more and more instances of people running for office on the platform of "I am not a lawyer, so you can trust me."
A simple way to solve this problem, methinks, is to add an amendment to the United States Constitution: "Any judge, at any level, may be recalled at any time by a [insert majority or reasonable supermajority here] of those voting in an election called for such purpose. Such election must be called within x months of the submission of petitions, etc."
This amendment would have to be very verbose, spelling out precise parameters regarding conditions, numbers, and times, in order to prevent perversion (interpretation) by the judiciary.
I am certain that once this amendment enters the canon of "LAW", all attorneys and judges will do their best to ensure that it is carried out precisely.
10.2.2005 2:11pm
memberofthemasses:
David Berke: Once again, you avoid the question. If laws do not represent social norms (e.g., accepted limitations to 'normalize' behavior in a specific group), what are they? If you intend to claim that such a definition does not suffice, then provide one that you think does beyond - 'they try to capture key aspects of social norms.' Uh, doesn't that amount to, essentially, the definition I put forth? If not, then (here we shall use an accepted, normal practice in typing, word processing, and internet posting to add emphasis) WHAT IS YOUR DEFINITION?!?!

Can reasonable people agree that it is unacceptable behavior for individuals to urinate or defecate in the streets of your average, American city? Is it too beyond the grasp of the majority of people in the group to understand that the 'social norm' is NOT to do so and what constitutes "public?" Why then does a statute need to read as follows...

Sec. 15-64. Public urination and defecation prohibited.

(a) No person shall defecate on any street, alley, sidewalk, parking lot, park, playground, school yard, cemetery, floor of any building, or any public place, except in such place that has been designated a restroom.

(b) No person shall urinate on any street, alley, sidewalk, parking lot, park, playground, school yard, cemetery, or floor of any building, except in such place that has been designated a restroom.

(c) No person shall urinate in any public place in such a manner as to expose his or her genitals at any public place.

(d) "Public place," as used in this section, shall mean any place where the conduct involved is actually viewed by someone who is not related to the person nor a member of his or her household.

(Ord. No. 9293-1, § 1, 7-6-92)


This is a real ordinance, "hidden" in a list under:
ARTICLE IV. OFFENSES AFFECTING PUBLIC HEALTH, SAFETY AND DECENCY*; DIVISION 1. GENERALLY; from the 1998 Urbana Municipal Code.

A Business Law professor used to advise students that the way to prepare for his examinations was to: "mentally picture yourself entering a walk-in closet, closing the door, turning out the light, sitting down and asking 'What If?' as regards a particular scenario." The problem with this perception of law, not to mention your argument regarding inclusion of nuances and jargon, is that it is philosophically, intellectually, and physically impossible to cover all the "What if's." Therefore, reliance on an obtuse, heavily nuanced written code; FindLaw, Lexus search, or library collections and the skill of clerks in finding the precedents therein; and individual, judicial discretion is asking for the very chaotic and seemingly arbitrary decision making we now see and which has led to the perception by the public, who you claim were never intended to fully appreciate the laws and decisions anyway, that the judiciary is arrogant, disconnected, out-of-control, and unaccountable.

As for "determining what the norms are?" Uh, weren't you the one who argued that: "Any reasonably intelligent lay person can figure out what the law is, if they are so inclined." Are you now suggesting that reasonably intelligent lay persons have the ability to ferret through laws, statutes, and decisions written for and by judges/lawyers in the jargon of the industry, but that these same persons might be incapable of determining what is considered to be acceptable and reasonable behavior within the group?

You have maintained: "The jargon in a given field is developed by those who specialize in that field, not by the public at large...The mere fact that not all law is immediately accessible to average people, at least with regards to statutes, is largely because they are written through the compromise of numerous people who have objectives other than clarity. Complaint to your state or federal legislators about that.

The reason that decisions are not immediately accessible is clearly indicated above: They are written by one group of specialists that is charged with interpreting the law (judges), with the understanding that their writings will be reviewed by other similar specialists (judges) as well as those who will have to determine what conduct, in the real world, falls within its boundaries (lawyers.) Hence, jargon - for the reasons explained above."

You then reinforce your position by stating: "You don't understand. You actually seem to go out of your way to misunderstand. I said that statutes were written the way they were because they are the result of too many compromises among people with wildly different incentives and goals. This is furthered by a desire to cover a larger number of circumstances, resulting in more lengthy discussions, notes, sections, sub-sections, and exceptions. I never once said that they were written for lawyers and judges. You simply chose to misunderstand so you could repeat your arguments."

I get the impression that it is not my argument that defeats itself. What part do I not understand? Your explicit statement that "They are written by one group of specialists that is charged with interpreting the law (judges), with the understanding that their writings will be reviewed by other similar specialists (judges) as well as those who will have to determine what conduct, in the real world, falls within its boundaries (lawyers.)" or the part where you explicitly claim that "I never once said that they were written for lawyers and judges...?"

PREMISE: We can accept that jargonistic law written with the intent of covering infinite permutations of "what if?" potentialites is unworkable and impossible as a practical matter; as demonstrated by the impossibly conflicting statutes currently on the books, the inconsistent decision-making of judges dependent on jurisdictional parameters and paradigmatic proclivity, divergent opinions (see this board) among the 'specialists' within the field who are presumed to be the ones intended to understand in the first place, and the decided lack of awareness and understanding exhibited by a public who is required to operate within the parameters of laid down by said statutes.

PREMISE: We accept that the law is NOT the exclusive province of the judiciary and was intended to serve the people at large. (Uh, what 'evidence' or 'documentation' would you like for the obvious?)

PREMISE: We accept that, in the absence of a proffered, alternative, and agreed upon definition of law and its role in a society, the "law" is the codified expression of accepted limitations to 'normalize' behavior in a specific group.

PREMISE: We accept that reasonably intelligent individuals in that group are able to recognize and understand the normalized behavior expected of them in that group.

QUERY: Why would we need polls or statutes intended to "clarify" recognizable norms? Especially when the statutes/laws YOU propose are, in fact, replete with permutations which may be somewhat less than exhaustive in their potentialities, filled with jargon which was never intended to be understood by or accessible to the public they purport to represent, and are open to linguistic deconstructionism by judges based on the very criteria you cite as making "norms" impossible - area, religion, ethnicity, political viewpoint, and socio-economic status?

QUERY: Would not an approach to law, based on "common understanding" be more efficacious? Isn't that why we, in fact, have different jurisdictional mandates in the first place, to offset or mitigate the very factors you cite? Would not such "common understanding" mitigate the negative effects of the criteria you cite by the very fact that "common understanding" would reflect what the reasonably intelligent individuals in that group are able to recognize and understand the normalized behavior expected of them in that group?

What part don't I understand? Is it the part where I fail and refuse to accept your world-view; one which is neither consistent nor informative, while being elitist and exclusive in its design? Is my presumed lack of understanding based on the premise that since I do not accept this world-view, I am obviously misinformed, bereft of skill or knowledge, and am obtuse to the point of screaming incoherently to try making my point?

What was that about personal attacks? At least I put it in plain, American English rather than attempting to obfuscate to appear more solicitous and of superior intellectual attainment.

As for your diatribes regarding the Declaration of Independence... I truly appreciate your attempts to lighten all our loads by informing us that we may throw out and/or ignore over 200 years of tradition, legal argument, and judicial reference. Even if such were possible or desirable, I would find it difficult to do so without reference to ignorance, errant polemic substitution, arrogant and prejudicial definitional creation, combined with more than a modicum of self-aggrandizing psuedo-intellectualism.

Isn't that what we refer to when we object to opposing council arguing facts not in evidence while drawing conclusions which are not only spurious and inflammatory, but are misleading and solely intended to cloud the issues at hand while prejudicing the court as to the actual intent and common understanding of the law? Isn't that what a 'non-lawyer' might refer to as "exaggeration, red herrings, non-sequiters, extremism, or straw men?"
10.2.2005 9:19pm
David Berke:
Memberofthemasses,

I profoundly doubt you'll read this, but I have answered both of your questions on numerous occasions.
(1) Laws are an attempt to, piecemeal, reflect certain parts of key social norms. Rather than actually BEING the norms.
(2) "They are written by" was a reference to decisions, not statutes. If you'd read carefully, you would have seen this.
(3) Anytime someone says "you intentionally misunderstand" it means you're avoiding the issues to serve another purpose.
(4) How is a simple explanation that the Declaration of Independence has no effect a "diatribe"? When did I start ranting and raving?
(5) I find the following comment hysterical, since you do exactly what you claim I did: "At least I put it in plain, American English rather than attempting to obfuscate to appear more solicitous and of superior intellectual attainment. "
10.4.2005 2:39pm
memberofthemasses:
Read it. Sighed. Tired of the go 'round.

1.) Still no informative, encompassing, or alternative definition of what the law is and the role it serves provided.
2.) If lawyers aren't the ones writing, reviewing, and approving language contained in the statutes, then who does?
3.) I'm glad to see you owning up to the problem.
4.) How about now? Again resorting to tactic rather than substance. A diatribe is not, of necessity, a shrill 'rant' or 'rave.' It is, by definition: "a bitter, often malicious criticism or denunciation." I'd suggest that your outright dismissiveness of the Declaration as nothing more than an historical document representative of ideas that even the framers of the Articles of Confederation and the Constitution felt to be 'insignificant' might be telling in this instance. I quote you: "If the country had thought those statements were sufficiently necessary, they would have been reflected in one or both of those documents." Once again, I thank you for offering to throw out over 200 years of social science education, tradition, legal argument, and judicial reference. But, I find your limited discourse, conspicuously lacking in fact or illumination, less than persuasive.
5.) Glad I entertained you. I should have surmised from its content that your contributions were more for your own amusement than for the purposes of edification.

Thanks for the trip.
10.4.2005 7:32pm