Participating in the Constitution in 2020 conference at Yale this weekend gave me a chance to consider the state of constitutional theory on the left. The contributors to the Constitution in 2020 book and many of the participants in the conference are well-known liberal constitutional scholars. My dominant impression is that there is a great deal of consensus among left of center con law scholars about which way most important cases should come out, but much less agreement about why. If you look at the big constitutional issues facing the Supreme Court – federalism, property rights, criminal defendants’ rights, the death penalty, executive power in wartime, abortion, campaign finance – there is very little disagreement among liberal scholars about the question of what the Court should do; though there is some divergence about how fast the courts should go in getting from here to there.
On the other hand, there is a great deal of debate about the theoretical reasons justifying these preferred results. Big-name liberal constitutional law scholars range from originalists like Akhil Amar, to Bruce Ackerman’s “constitutional moment” approach, to “living Constitution” theories of various types (e.g. – Laurence Tribe), to representation-reinforcement theories (e.g. – the late John Hart Ely and those who have build on his ideas), to “judicial minimalism” (Cass Sunstein), and several other theories I won’t go through here. The Constitution in 2020 book and conference largely sidestepped these theoretical debates by focusing on preferred outcomes in particular issue areas. As Paul Kahn (a participant in the conference, but not a contributor to the book) put it, the Constitution in 2020 project seems to call for “less talk and more action.”
The state of affairs on the right is almost exactly the reverse of that on the left. With rare exceptions, most conservative and libertarian constitutional theorists are originalists. Nowadays, most of them even agree that original meaning originalism is preferable to original intent. Despite this near-consensus on theory, there is enormous disagreement about its application to particular cases. Right of center originalists range from co-blogger Randy Barnett – who would urge judicial invalidation of a wide range of federal and state laws – to Robert Bork and Lino Graglia, who argue for near-total deference to the political branches. Some of this disagreement is a result of the conservative-libertarian ideological division. But even among conservatives, there is a fairly wide range of opinion on the proper scope of judicial review. My frequent coauthor John McGinnis, for example, favors much stronger judicial review than Bork or Graglia, for instance. Steve Calabresi and Michael McConnell are somewhere in between.
ChrisTS says:
So, that would be: Liberals, predictable; conservatives, not?
(Seems like Sandy Levinson should get a mention, here.)
October 5, 2009, 6:10 pmloki13 says:
Allow me to interpret:
Liberal scholars have a rough agreement on what they think the outcome of cases should be, but there is a difference between them in the correct way to interpret the Constitution.
Conservative scholars have a rough agreement on what they think the outcome of cases should be, and they’re very “original expected application/original meaning”, but there is a difference between them in the correct way to interpret the original expected application of the Constitution, and how it should apply today.
So… have you thought about turning this into a standup? “Conservatives scholars dance like this, and liberal scholars dance like that” routine? What I’m getting is that liberals want liberal results, conservatives want conservative results (all of this is in general) and that legal scholars like to argue with one another.
October 5, 2009, 6:26 pmRobbL says:
It seems to me that “original meaning originalism” is just a meaningless political slogan that (by your own admission) is utilized in favor of whatever position a person takes. Why not find a new theory?
October 5, 2009, 6:31 pmajk says:
Well no, that would be the exact opposite of what Ilya is saying.
October 5, 2009, 6:33 pmChrisTS says:
Snap.
October 5, 2009, 6:42 pmloki13 says:
ajk,
Uh-huh. Look, anyone that puts together Amar, Tribe, and Sunstein and says that there is widespread agreement on the outcome of individual cases deserves that reading.
There is as much of a consensus on the liberal side about the outcome of cases as there is the conservative side. There are those that want *more power* devolved to the states (laboratories of democracy). There are those that believe the commerce clause is superfluous. There are minimalists, and those that hope courts aggressively police rights.
October 5, 2009, 6:42 pmloki13 says:
Anyway, buiding on what RobbL said and what I was trying to make fun of:
While this post is about the “consistent methodology” used by the conservatives, it is a pretty useless consistency when there is no agreement about how it should be applied.
So, liberals are bad legal theorists using jurisprudential theories to justify their beliefs.
Conservatives are bad historians using selective history to justify their beliefs.
And?
October 5, 2009, 6:46 pmChrisTS says:
What is the point of trying to delete something when it shows up, anyways, for 4 minutes?
October 5, 2009, 6:46 pmFurther, why should one have to submit a reason for a deletion? I was just forced to write that I wanted to delete my own comment “because it was stupid.”
JK says:
Why not just come out and say it? You think liberal scholars are all results oriented thugs that don’t give a damn about what the constitution actually means so long as they get their way, while conservative scholars are earnest thinkers that what to discover the “right” answer to constitutional questions even if the final results aren’t to their liking.
If that’s your position then fine, but it’s childish to try to couch it in this “just making a simple observation, without having really considered the implications” nonsense.
October 5, 2009, 6:52 pmloki13 says:
JK,
Yeah, I think you glommed on to the point of the post. It’s been my belief that the only jurisprudential philosophies that I respect are the ones that are consistently applied, even when it means that the consistent application of them will cause a result that you do not like. That’s why I have a grudging respect for J. Thomas- I think he’s dead wrong, but he’s consistent about his wrongness (with the exception of 11th Am. cases).
October 5, 2009, 7:00 pmJay says:
What an awful bunch of comments. Ilya tries to write a thoughtful post, and gets shouted down by a bunch of would-be cable shoutfest pundits who can’t imagine that anyone has ever genuinely had a thought that doesn’t fit neatly in their good v. evil paradigm of the law or politics. You’re right, JK–every blog post should either be “Libruls suk, Bork 4 life!” or “Wingnuts blow, Akhil Amar rox!” That would eliminate all the other empty words that clog up the page now.
October 5, 2009, 7:22 pmOrin Kerr says:
JK,
If you disagree with Ilya, one effective response would be to show that he is wrong. It might be more persuasive than to claim a secret motive.
October 5, 2009, 7:46 pmCornellian says:
Why not just come out and say it? You think liberal scholars are all results oriented thugs that don’t give a damn about what the constitution actually means so long as they get their way, while conservative scholars are earnest thinkers that what to discover the “right” answer to constitutional questions even if the final results aren’t to their liking.
Actually if that was his point (and I don’t think it was), this state of affairs would equally defeat the conservative notion that simply turning to the original understanding of the Constitution will provide the answers to constitutional questions. If conservatives all agree (or mostly agree) that original understanding is the way to go, but come to wildly divergent conclusions about what that means in individual cases, doesn’t that mean that original understanding doesn’t actually answer any contentious Constitutional questions?
Also, I’d quibble with the notion that Bork favors interpreting the Constitution according to its original understanding. His extreme legislative deference views would have the courts defer to the legislature despite what the Constitution says, not because of what the Constitution says.
October 5, 2009, 7:50 pmCareless says:
Why not just come out and say it? You think liberal scholars are all results oriented thugs that don’t give a damn about what the constitution actually means so long as they get their way, while conservative scholars are earnest thinkers that what to discover the “right” answer to constitutional questions even if the final results aren’t to their liking.
While I certainly know that there are people on both sides who will accept any ruling that favors their favored policy, I’m not aware of any on the “left” that will fight against high court decisions that do so. I’d love to be made aware of some prominent people on the left who fit this description and would be very glad if you could tell me about them (or just give some names). The number of people on the right who write for this site and fit that description is non-zero.
October 5, 2009, 9:46 pmJohn and Ansley » Blog Archive » Objectivism and Constitutional Law says:
[...] started thinking about this subject again recently after reading this post over on The Volokh Conspiracy about the state of the various Conservative and Liberal judicial theories. If you look at the big [...]
October 5, 2009, 10:18 pmLior says:
JK: There’s a long-standing approach to interpreting the constitution by saying “the constitution serves to protect the fundamental values of society; it should therefore be interpreted in light of the current fundamental values”. Thus, if you think that today’s society generally opposes the death penalty, you’d believe that the prohibition against cruel and unusual punishment means that today the death penalty is unconstitutional — in fact for exactly the same reason that the death penalty was constitutional right after the 8th Amendment was ratified. Progressives (who, in caricature, believe in changing the values of society) prefer this approach: it ensures that in any case where they manage to convince a good part of society to changes its views, the Constitution immediately entrenches the new view for everyone.
Would you call that a “results-oriented approach”?
I personally think it’s not a good approach to Constitutional drafting — you cannot vote to fix in stone the views of future generations — but it is one way to approach Constitutions.
October 6, 2009, 12:46 amLior says:
PS: The conservatives on the Court (Thomas excepted) are just as results-oriented: notionally they have a single method of interpretation but somehow it always achieves the results they want. See Scalia’s contortion in Raich to see what I mean.
October 6, 2009, 1:02 amJosh Blackman says:
I also attended the conference and made many of the same observations as Ilya. They did little to reconcile the Amar view from the Sunstein view from the Tribe view. But, I think that may be byproduct of their views, rather than an unintended consequence. When Progressives eschew formalism, and focus on pragmatism, the means to achieve a goal are largely irrelevant. All that matters is that the desired outcome is achieved. Taken to an extreme, a few dozen constitutional law scholars may find it only slightly unbearable that they cannot agree on a specific means to achieve progress goals.
Conversely, conservative constitutional theorists (more or less) tend to hedge towards formalism. The means matter more than a desired outcome. So while conservatives tend to agree with an originalism methodology, they use those means to achieve different outcomes.
http://joshblogs.wordpress.com/2009/10/06/the-constitution-in-2020-progressives-as-pragmatists-and-conservatives-as-formalist/
Check out my liveblog of the conference for more details:
October 6, 2009, 4:10 amhttp://joshblogs.wordpress.com/category/liveblog/
The Constitution in 2020: Progressives as Pragmatists, and Conservatives as Formalist « Josh Blackman's Blog says:
[...] October 6, 2009 — Josh Blackman Over at Volokh Conspiracy, Ilya Somin writes about The State of Constitutional Theory on the Left and the Right My dominant impression is that there is a great deal of consensus among left of center con law [...]
October 6, 2009, 4:14 amanguslander says:
Ilya,
I think there’s more theoretical disagreement among right constitutional theorists than you see, and I think you’ve already mentioned some evidence for this: that there’s a great deal of disagreement among right constitutional theorists over what the outcome of a given set of cases should be.
First, the disagreement between e.g. Barnett and Bork on how frequently the Court should strike legislation boils down to two disagreements: over the role of stare decisis and over the deference (be it for epistemic reasons, or reasons having to do with the legitimacy of democracy) judges should give to the outcomes of democratic processes.
Another major theoretical cleavage is over whether the Constitution includes some specifically moral / normative propositions (closer to Barnett’s view), or whether it’s rights-granting provisions just codify some elaborate set of common law custom (closer to Scalia’s view).
In large part, this reduces to a metaethical dispute. Those who are comfortable talking about moral reality are inclined to think the Constitution codifies moral principles, those who regard moral talk as cover for imposing preferences deny this. (Cf. Whittington’s “The New Originalism.” Also the abuse Scalia heaps on moral reasoning in “A Matter of Interpretation”).
One final disagreement, related to the metaethical dispute, concerns the justification for originalism. On the left everyone agrees on the proper outcomes, but disagrees on the process that leads to them. On the right everyone agrees on the process, but disagrees on why it’s justified. Whittington’s “presumptive consent” (or whatever it’s called) differs from Barnett’s justification, which differs from Roger Pilon’s, etc.
So there are five (if I’ve counted correctly) theoretical disagreements. You could say, “granted, but at least all these folks are originalists.” My reply: they sure claim to be originalists, but add in a commitment to stare decisis, and a refusal to read the rights-granting provisions as, on their face, they ought to be read (as codifying moral oughts), and divergence on why originalism is true, and I’m not so sure about that. (Further, as I’ve tried to make clear, it doesn’t seem to me that their all being originalists has any bearing on whether there’s a broad theoretical consensus on the jurisprudential right.
October 6, 2009, 6:42 amTomH says:
More court decisions should have this option.
October 6, 2009, 6:42 amBucketTruck says:
great post thanks for sharing
October 6, 2009, 6:54 amSuperSkeptic says:
I am surprised that nobody has mentioned Consent Theory (aka Contract Theory) of Constitutionalism. Seems to me the Right favors it (however fictional it is) and the Left doesn’t – which is why they bypass it under the Constitution and would seek to allow Congress or a state legislature to enforce the “will of the people” (even though this is also based upon a fictional consent theory of representation). Interpretation, as wily as that inherently is, also flows differently from these two conceptualizations of Constitutionalism.
October 6, 2009, 6:57 amdevil's advocate says:
careless:
Try National Endowment for the Arts v. Finley (1998). That would be Walter Dellinger was acting Solictor General then I believe and made a passionate intellectual argument on his defense of constraints on NEA grant processes enacted by the Republican Congress. He could be the exception that proves the rule.
I do think that point that Ilya makes about more disagreement about substantive outcomes on the right is accurate. I think that his tip of the intellectual hat to incrementalism or judicial minimalism talks about process or theory differences rather than substantive difference on the left.
While there is an element of the idea of such consistency on the left, that a partisan could jump quickly to offense at the idea that this implies mindless consistency. I think that Ilya was simply communicating the sense that pervades this kind of progressive conference. It is a post about culture as much as much as content. Certainly those of us who recall Richard Epstein and John Yoo going at it on the Federalist dias can claim I think a wider range of debate within our own coalition. Whether such inconsistency, self doubt, or attempts to shoehorn a multiplicity of desired outcomes under an originalist framework is ‘better’ is a reasonable debate. It can be joined without being snide, I think.
Finally, I agree with loki13 and Lior about Thomas’s consistency (albeit I think he’s right) and recall the nervous Letterman confession kind of laughter that followed Scalia refusing to respond to a questioner asking him to square his concurrence in Raich and the opinion he joined in Lopez at last year’s Federalist convention. I don’t think it necessarily reflected a complete lack of willingness to defend this contradiction, and it did come as the last question which would have been addressed in a cursory manner. But given the implication of a lack of consistency, I think some answer would have been better than none even if unfulfilling. In any event, it was the very essence of the diversity in outlook at the Federalist Society that presupposes someone like Scalia ought to have at least a soundbite ready to answer such a question, because it is going to come. You don’t get a pass.
Again, I am sorry I missed this event at Yale, because it was close by and did provide a kind of window on the intellectual cream of the other crop. Without repeating I will simply point to a post I made late on the panel on which Ilya participated. (Drat, the old blog allowed you to link to a particular comment. I can’t seem to find a link that will do that so the link is just to post and you have to scroll to the comment. I’m almost at the bottom which isn’t too bad since their are only 8 comments. I know you can reference the time and then people can scroll but you used to be able to just grab a link for the particular comment so no scrolling necessary. For crying out loud, no justice for sock puppets — although I often linked to other’s comments as well. Just another brick in the wall of my Burkian objection to this new environment. I don’t mind progress, but I get a whiff of Robespierre in the cyber-air).
Brian
October 6, 2009, 6:59 amAnon321 says:
I’m a bit surprised to see that liberal scholars from the “popular constitutionalism” camp weren’t mentioned. Do I take it that they weren’t involved in the conference? I ask because people like Mark Tushnet and Larry Kramer (who, to my knowledge, are considered to be prominent liberal constitutional scholars) advocate a much narrower scope for judicial review and therefore disagree with others on the left about the proper outcome of many important cases. (That is, they might agree that a given law could properly be deemed unconstitutional, but they’d say that unless it’s an utterly open-and-shut case, the political branches, rather than the courts, should determine the contested question of constitutionality, and therefore a court case about the constitutionality of the law should rule for the government.) If their views weren’t represented at the conference, then perhaps the conference didn’t paint an accurate picture of the degree of intellectual heterogeneity on the left.
October 6, 2009, 7:00 amCJColucci says:
It seems to me there are two very different camps: those who think or say they think they have a method that significantly cabins discretion and leads to definable (possibly even, by their lights, desirable) results, and those who know they don’t.
October 6, 2009, 8:09 amhlr says:
I think the response to Ilya’s description of the Right is that originalism is indeterminate. Folks have been pointing this out for decades. See Mark Tushnet, Following the Rules Laid Down, HLR (1976?).
The idea is that in order to accurately describe the original public meaning or expected application (or whatever) of a particular rule, you would need to situate that rule in the context in which it was adopted. And to accomplish that task fairly and accurately, you would need to do an entire creative reconstruction of life in 1790. Nobody seems to try.
And if they do try, the task is not plausibly accomplishable because there is no single such thing as “life in 1790″, just as there is no single such thing as “life in 2009″. It is always legitimate to add (or subtract) a new fact into the mix and claim that the situation was actually different from the prevailing account. And so you get multiple Histories of the same time period. And so originalism cannot yield consistent outcomes. The classic counterexample “against” originalism, Brown v. Board, can actually be supported by originalist methodology. Anything can.
The legal Right does not have a consistent methodology. The Right might have a diversity of preferences for outcomes, and I can’t think of a reason why that’s necessarily good or bad. It just is. The same goes for the Left’s possible homogeneity on outcomes. Perhaps agreement on outcomes is more effective for organizing political action.
October 6, 2009, 8:38 amlolwut says:
Shorter loki13: Ilya deserves to be grossly misinterpreted as saying the exact opposite of what he said because I don’t like the thrust of his claims.
October 6, 2009, 9:41 amPaul Horwitz says:
Just in response to Brian’s comment above, and without engaging all of Ilya’s points, I think as another attendee and panelist at the conference that it is fair to say there was a wide range of views at the conference, albeit the conference generally leaned in a particular political direction, as I’m sure some FedSoc conferences may even if they feature spectacular intra-panel disagreeements. The colloquies between the panelists and Bruce Ackerman on the federalism panel offer one example, but there were others. Having said that, I do post at Prawfs on tensions within the conference of a slightly different nature, but perhaps related to the ones Ilya discusses here.
October 6, 2009, 9:45 amloki13 says:
I’ve decided to write a more thoughtful post, because, hey- it’s the morning and I’m less cranky. I think the problem that many people (including me) found with the original post is that Prof. Somin didn’t realize that he was painting a caricature that wasn’t true, but in so doing, inadvertently showing that the two “approaches” suffer from the same problems.
To break it down, Prof. Somin is making the following argument:
Ls use different theories to interpret the Constitution, but end up at the same result.
Cs use the same theory to interpret the Constitution, but end up at different results.
However, this shows a (rational!) ignorance of Prof. Somin’s part toward liberal scholars. Somin is familiar with the scholars (and schisms) of his own side, but doubtless the other side looks like a monolithic whole; certainly, when going to a conference organized around a particular topic it might seem moreso. To anyone familiar with the liberal scholars, you are aware that there is as great a schism on that side as to results as there is on the conservative side. There are liberal “deference” scholars, and liberal “activist” scholars.
But hey- people know the faults in their own family better than the faults in others.
Anyway, properly understood, Prof. Somin’s claim breaks down into:
Ls use different theories to interpret the Constitution, but end up at different results.
Cs use the same theory to interpret the Constitution, but end up at different results.
Which is to say- that “originalism” (intent, expected application, meaning etc.) is no more determinate than a plethora of jurisprudential theories. And that’s not a new observation. I’ve always felt that textualism is important, but when it comes to originalism, lawyers make bad historians.
October 6, 2009, 10:07 amlolwut says:
That’s not Somin’s claim, “properly understood.” That’s your claim. And it’s the complete opposite of what Somin is claiming, “properly understood.” You want to dispute Somin’s claim, and you want to claim the contrary — that’s fine. But the contrary isn’t in fact what Somin is saying, “properly understood.”
October 6, 2009, 3:40 pmSuperSkeptic says:
Prof. Somin writes:
As Paul Kahn (a participant in the conference, but not a contributor to the book) put it, the Constitution in 2020 project seems to call for “less talk and more action.”
and
Having not been at the conference, but read the book, I see some truth in this. This kind of pointed advocacy may be the politically effective thing to do; although, politicization is what originalist-type constitutional interpretation seeks to avoid in theory. It may land specific policy victories I may disagree with, but more importantly, it may also serve the higher purpose of entrenching precedent and lenses from which to view constitutional interpretation in the future. Consider: how law schools today teach that the Constitution of the United States is a “Living Constitution” as a matter of fact — but this was not always so, was it?
* * *
Professor Somin also states:
The state of affairs on the right is almost exactly the reverse of that on the left. With rare exceptions, most conservative and libertarian constitutional theorists are originalists.
This is because, in today’s context, to be “liberal” means to want the policy choices du jour, “conservatives” are best served continuing on conserving by creating an originalist interpretive presumption against such policy or otherwise, and libertarians because they’d (alright, we’d) like to preserve the liberties we have at least thank you. With the conservatives we suffer from trying to find a consistent and principled method of interpretation that would allow us to keep what we have in there (think Second Amendment, or Fourth). We suffer with the liberals however in the inquiry on how to “grow” “rights,” since we, naturally, wish to extend liberty.
October 6, 2009, 6:56 pmloki13 says:
Yeah, it’s unfortunate that I didn’t devote an entire post explaining why I wrote that. Or at least a paragraph immediately preceding that statement. Wait, I did? Wow, selective quoting must make you feel so good about your reading comprehension.
FWIW- if someone states what Prof. Somin wrote, then states why it’s incorrect and gives reasons, they are allowed to make a conclusion from their reasons. You, of course, may disagree, and it won’t be any skin off my back. Be nice if you could disagree with the substance of what I said though.
October 6, 2009, 10:36 pmloki13 says:
Yeah, it’s unfortunate that I didn’t devote an entire post explaining why I wrote that. Or at least a paragraph immediately preceding that statement. Wait, I did? Wow, selective quoting must make you feel so good about your reading comprehension.
FWIW- if someone states what Prof. Somin wrote, then states why it’s incorrect and gives reasons, they are allowed to make a conclusion from their reasons. You, of course, may disagree, and it won’t be any skin off my back. Be nice if you could disagree with the substance of what I said though.
October 6, 2009, 10:36 pmlolwut says:
1. Your conclusion that Somin meant something contrary to what he actually said doesn’t follow from your assertion that Somin is incorrect.
2. The claim “Ls use different theories to interpret the Constitution, but end up at different results” you attribute to Somin, “properly understood.” If Somin is “incorrect,” then this claim — which you attribute to Somin — is also incorrect.
3. Your “conclusion” does not follow from your premises. It is inconsistent with your premises.
Nor mine, since I said: “You want to dispute Somin’s claim, and you want to claim the contrary — that’s fine.” I obviously wasn’t taking issue with that, but rather, with your claim that Somin meant the opposite of what he actually said.
Evidently reading comprehension is not your forte either.
October 7, 2009, 2:14 amdevil's advocate says:
loki13,
It seems to me you are simply engaged in more careful quibbling. The difference between deference and activism is not a difference in desired direction in various substantive areas of law. You have rather shown us a significant difference in method or theory of constitutional interpretation. Do you really think, for instance, that liberal judicial activists would want the courts to use their power to strike down a national health care mandate as unconstitutional?
On the other hand, I think it can be assured that Lino Gralgia would detest such an undertaking. This isn’t a complete argument because I can’t say whether Gralgia would think National Health Care a bad idea independet of the question of the courts power to strike it down, but I will ask him when I see him.
As I said in the post above, I think their are some liberal participants in the legal system who do not allow their policy preferences to alter their views on deference, and so you can get some dissonant substantive outcomes as in the NEA v. Finley case. But I think these are more the exception that proves the rule that Ilya proposes, i.e. they all want the court to move in the same substantive direction and the question is pace or increment. Perhaps you can point out more examples such as the one I have conceded.
But I thing the differences between Yoo an Epstein boil down to substantive disputes over the content of legal rights and not whether the court has the power to vindicate those rights. Ditto Randy Barnett and Nino Scalia.
It may indeed by a caricature that Ilya has made but I think that it should be readily exploded by example. Even the example I cited is not necessarily one in which Dellinger wanted the more restrictive NEA policy, but he wasn’t willing to change his view on constitutional interpretation to support it, so that isn’t an example as in the previous paragraph where the disputants actually desire a different substantive regime.
Brian
October 7, 2009, 2:39 amloki13 says:
lolwut….. I am simply amazed by you. Truly. Posts like yours allow me to understand why some gaps cannot be bridged. Let me break this down for you very slowly:
1. A writes what B *actually* wrote.
2. A makes argument refuting B.
3. A then writes “properly understood, this is B’s claim”. This is called a rhetorical flourish; A is not claiming that is what B wrote (see step 1), A is writing that properly understood (applying step 2) this is what A believes the argument to really be.
….just, wow. I hope I made this a little more clear for you. FYI, when someone writes that “it’s raining cats and dogs”, you don’t have to call the ASPCA.
October 7, 2009, 1:22 pmloki13 says:
Devil’s advocate,
I don’t think you understand the nature of my post (or have much experience with liberal legal scholars as opposed to “liberal judicial activists”). There are vast differences of opinion between them about, for example, the role of precedent, and this would have a great impact on what they believe the proper role of the court is in striking down more recent (Rehnquist on) precedent, or, for that matter, older precedent (11th Am. from Hans on). To argue that there is homogeneity in results on the liberal side while the conservative side is process-oriented shows a (good-faith!) willfull blindness. For examples, see *any law review) or just use Prof. Somin’s examples- Sunstein, Tribe, and Amar. While they agree on some results (just as barnett and Scalia agree on some results) they don’t com close to agreeing on all of them.
October 7, 2009, 1:30 pmlolwut says:
It is also called a falsity. Because that is not B’s claim. That is the precise opposite of B’s claim.
And last I checked, “this is B’s claim” is a factual statement of what you believe B to be claiming. It isn’t a metaphor (“raining cats and dogs”). Your comparison is therefore inapt.
Your argument from incredulity is therefore vacuous and silly. You made a false claim, whether because you expressed yourself inarticulately or are being obtuse, I don’t know. But man up to it.
October 8, 2009, 4:12 pmloki13 says:
Let’s try this again more slowly….
Prsident Obama has stated that the stimulus has improved the economy. However, the most recent empirical reports (blah blah) show that the economy has not improved. Properly understood, Obama is saying that al that government money went for nothing.
Sentence 1 is what the person said.
Sentence 2 is the evidence you produce to counter it.
Sentence 3 is how you recast the argument (properly understood) tho show what you believe the argument really is when the additional information you just provided is factored in (aka properly understood).
But hey- feel free to keep diggin’ that hole! I don’t know whether to laugh or shake my head sadly at what they’re teaching in our schools.
October 8, 2009, 8:07 pmlolwut says:
So you finally admit “recasting” the argument, but can’t admit that the argument you “recast[]” was not in fact the argument Somin was making, “properly understood.”
You’re being intellectually dishonest.
And I’m not the only one pointing this out. Ajk did as well, up-thread. So my reading of your comments is clearly not idiosyncratic.
Keep blustering. It amuses me.
October 10, 2009, 12:58 amSacred Ego » Objectivism and Constitutional Law says:
[...] started thinking about this subject again recently after reading this post over on The Volokh Conspiracy about the state of the various Conservative and Liberal judicial theories. If you look at the big [...]
December 19, 2009, 1:35 am