Isn't the real problem here the willingness of government - legislatures, administrators and courts - to embrace the very corruptible idea of a 'legal fiction'? I'd be interested to hear any VC posters' ideas on what role 'reality' has in law.

While Ryan Waxx's description is very amusing, I think it erroneously attributes corrupt motives to those whose view of 'reality' differs from his own. I think the best way to understand the role of 'reality' in the law is to understand the nature of the judiciary as a sort of quasi-scientific high priesthood. I say quasi-scientific because law schools really indoctrinate students with the notion taken from physics that there really is no objective "reality" beyond what we are capable of perceiving (note, for example the Heisenburg Uncertainty Principle), and the notion from Psychology that all of our perceptions are colored and influenced by our own experiences and learned biases. What one person "sees" and accepts as "reality" is often quite different from what is "seen" and accepted as "reality" by another person with a different perspective -- hence the fact that eye-witness testimony is notoriously unreliable; three witnesses to the exact same event will almost always tell three different stories which vary in small but important details.

This is a quite valuable insight for a lawyer whose job as an advocate is to convince a jury, an arbitrator, or a planning commission, or a legislative body, to see and understand any set of facts or circumstances from the perspective of his client. While we can all accept certain facts as objectively true, these are, for the most part, simple facts, such as "Water is composed of Hydrogen and Oxygen". However, that information is not very useful in actually using water; for that, you need to understand its properties, and the properties of something as simple as water are entirely a matter of perception. We think water is wet, but a droplet of oil, which repels water, would disagree. We think of water as slaking our thirst, but a crystal of sugar or salt views water as a dangerous solvent, something which can easily distroy its existence as a solid. A small bit of molecular Sodium views water as a dangerous incendiary, able to ignite the sodium into a bright hot flame by its merest touch.

The simple facts are rarely truly useful in deciding legal or political questions; when the questions become more complex, the answers are almost always flexible, depending upon one's perspective. The successful practitioners of law raise this flexibility with facts and perceptions to an artform, and the most successful become the judges, the high priests of seeing many alternate realities. From the perspective of judges, they are not ignoring reality, they are just much better than you at perceiving just how flexible the whole concept of "reality" really is. The problem is that they never lose the tendency to shape reality based upon their own experiences and prejudices, so they prejudge a given reality to fit their own notions of what is "right" or "proper" or "best for society", and proceed down the path of perception to find the reality that they set out to look for. Remember William Douglas in the Griswold v. Connecticutt case, who managed to find a Constitutional Right to Privacy in the "emanations from the shadows of the penumbras" of the Constitution. Robert Bork was roundly booed from the left for criticizing this "Right to Privacy", but all he really said was that if Justices are free to go rooting around in the "emanations from the shadows of the penumbras", they are quite likely to find whatever it is they set out looking for.

Why don't we all go over to Obama's website and waste their time with irrelevant questions?

Corrigendum et addendum

. . . the social tyranny of the state” should read –

. . . the social tyranny of the swill-minded, undemocratic, foul-smelling, abjectly putrid, class-ridden British State.

There, I think that about covers it.

I’m always amused by those who can’t see the Amendments for what they were – codified instruments to guarantee individuals their right to be “individual” in the face of (what at that time amounted to little more than) social tyranny of the state.

Celia, that may be your perception of reality, but it is not the only one possible, or even the most plausible. You demonstrate a certain close-mindedness in attributing evil motives to all who don't share your own perception.

DiverDan said:

“Celia, that may be your perception of reality, but it is not the only one possible, or even the most plausible. You demonstrate a certain close-mindedness in attributing evil motives to all who don't share your own perception.”

Sorry Diver - without prejudice – I say it IS the most plausible but I am completely open minded about that, shall we say I am more than pleased for anyone keen to offer a cogent argument to the contrary – perhaps for the pleasure of disregarding it or necropsy or, perhaps in your version of reality, if warranted, giving it any credit it might be due. So, if you’re so inclined, have at it.

I do not contribute any evil motives to anyone, let alone “all” who don’t share my perception – I suspect I’m contributing far worse to them. The notion that the Bill of Rights wasn’t meant as a social contract with the American people, ie with each person, guaranteeing them certain “individual” rights is laughable. The notion that its global intent wasn’t clear is equally laughable. The small-minded (but no doubt well-intentioned) prefects, perched (all too smugly) on their self-conceived (read that imagined) moral citadel have, for lack of a better term, “wreaked havoc” for far too long. Fear and small- (if not feeble)-mindedness are clearly driving factors but I can hardly equate that with evil motive nor purpose. (In case you missed that, I disagree with your assertion with respect to evil motives – I fear that I attribute it to flawed intellect). The single biggest fault with the Bill of Rights was that it was drafted by superior intellects and then left for subsequent intellectual and, I would argue, moral inferiors to “interpret” (in their personal, to use your vernacular, “realities”), ostensibly for “all” but, in truth, only for those incapable of recognizing it for what it was and sadly, sometimes all-too-successfully ramming their "view" down “our” collective throats – time after time ad nauseam – and to what purpose? Did you snooze through con law?

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Come on DD, I’m sure you well know the limitations of statutory bills of rights (vs constitutional) – what the state giveth the state may taketh away. States’ rights are indeed wonderful instruments when their purpose is aligned with individual “liberty” – you know, the ONE thing that truly differentiates “us” and “them”. In the case of states within our federation, however, I’ve yet to see meaningful examples of such alignment let alone ones propositional of expansion of those liberties, in fact it strikes me that quite the opposite is true. Most states’ rightists I’ve had the privilege of encountering spoke forcefully (and sometimes even eloquently) on matters of freedom – freedom for “states” to choose – a rather thinly-veiled guise for saying “we” want to impose our wishes on a subset of individuals within the whole. It is a slippery slope indeed when moral-social-conformists (which is what they too often are) make strident assertions that they are in favor of “rights” when this is nothing more than new (or at least different) powers of coercion (not rights) for the state to limit natural liberties of the individual. I just cannot subscribe to that theory but please help me out here, being a political ultra-conservative, I want to believe that my fellow “conservatives” are well-intentioned and really do, like me, want government “out of their personal lives” to the greatest extent possible – I just see so little evidence of it.