The Volokh Conspiracy

It's possible that they meant his viewpoint was "alternative" in the sense that it disagreed with the first two respondents.

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.

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.

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.

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?

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.

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.

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.

"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?).

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?

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?

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.

Some of my best friends are alternative.

Indeed, I see no need to question their alternative politics. It's their choice!

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.

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.

"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.

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.

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.

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?"

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.

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 . . .

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.)

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.

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?

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.]

"are seen to used" /= "are seen to be used" Sorry, TDP, ml, msl, &pfpp

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.

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."

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?

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

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.

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...?"

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.

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?

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.

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. "

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.

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?"