Obviously, the story that the media have been strongly supportive of Hillary Clinton and strongly critical of Donald Trump is a classic example of a “dog bites man” story. This preference for Democrats over Republicans has been true for at least the last 40 years in which I have been following these matters, although it seems stronger now than it used to be. What is interesting (although not exactly new) is that emails are being released about this corruption and the lack of shame about or consequence for these actions. Consider the most recent release. The Bill Clinton – Loretta…
Relations with Russia may or may not be, as the President said, at an “all-time and very dangerous low”—the Cuban Missile Crisis called and wants its ominous superlatives back—but the good news is that constitutional conflict is at a recent high. Congress is acting as independently as it has in a long time, including periods of split partisan control.
What prompts a man to change his mind on a serious matter after 35 years, and should the reversal be met with pride (for eventually getting it right), or chagrin (for taking so long)? For reasons of vanity, I’m going to take a positive tack and choose the former.
“Wisdom,” Felix Frankfurter once remarked, “too often never comes, so one ought not to reject it merely because it comes late.” Allow me to explain.
A new use for a still relatively new gene-editing technique is creating quite a stir. Through it, writes Melissa Healy of the Los Angeles Times, “scientists have rid human embryos of a mutation that causes an inherited form of heart disease often deadly to healthy young athletes and adults in their prime.”
The breakthrough here may be as much on the moral as on the technical front. “For the first time in the U.S.,” writes Amy Dockser Marcus in the Wall Street Journal, “researchers said they had edited viable human embryos to correct a disease-causing defect, avoiding problems that plagued previous efforts and stoking concerns that advances in the lab are outpacing public discussion about the ethics of gene editing.”
Justice Ruth Bader Ginsburg recently noted that she sometimes refrained from dissenting in the cases she regarded as less important like tax disputes and saved her dissents for the big ones like those on gender equality. Unlike some of her other obviously injudicious remarks, her opinion on this matter may be widely shared among judges. When I asked a friend who had become a federal appellate judge what most surprised him, he said it was norm among his colleagues to suppress written dissent in all but important cases. He was troubled by the practice but felt pressure to conform.
My friend is right to feel uneasy. It is a bad practice. First, it smacks of judicial hubris. It is often difficult to be sure how important a decision will be in the long run.. The fabric of the law is complex. For instance, the development of minor exceptions to a doctrine can eventually lead to pressure for its overthrow. Even cases that are minor to Supreme Court justices can have large ripple effects.
In a first installment (“Resistance, in the light of 1776”), following the lead of Pierre Manent, the Resistance came to sight as a way of looking at things characterized by 1) a binary view of legitimate and illegitimate views (in keeping with Hilary Clinton’s “racist, sexist, homophobic, xenophobic, Islamophobic – you name it” litany); 2) a quasi-religious cast (“political orthodoxy” and “heresy,” observed Manent); and 3) a novel form of democracy characterized by terms such as “diversity,” “multiculturalism,” and “inclusion,” but with its own blind spots and exclusions. As I put it: it is “rather exclusive in its inclusivity and monolithic in its view of diversity.”
Detroit, the new film from Oscar-winning director Kathryn Bigelow (2009’s The Hurt Locker), is actually three films. The first is a documentary-style dramatization of racial tensions in Detroit in 1967 that led to riots and fatalities. The second film is a horror movie in the style of The Texas Chainsaw Massacre (1974). The third film is a standard courtroom drama.
Unfortunately, Detroit, which is powerful for its first half hour, sinks under the weight of those
Who is the human person and has modern philosophy given us a truncated understanding of the person? Those are some of the questions put to philosopher David Walsh as we discuss his latest book, Politics of the Person as the Politics of Being, in this edition of Liberty Law Talk.
The rule of law is not at all the same thing as the rule of laws, or the preeminence of law in our lives; indeed, they are almost opposite, insofar as one of the objects of the rule of law is to make the legally permissible and impermissible knowable to the citizen in advance. Where there are so many laws that even highly specialized lawyers have difficulty in keeping up with the provisions in their own area of specialism, the rule of law declines, and litigators rush in where common sense fears to pronounce. This superabundance of laws exists in many places around the world today, and needless to say it flatters the self-esteem of legislators and judges. It makes them the arbiters of our existence. It also makes the rest of us wards of the court.
In our last post, we provided some examples of recent scholarship that rely on the view, which we have defended, that the Constitution is written in the language of law. They are not consistent with the view that the Constitution is written in ordinary language. In this post we provide some other important examples.
Scholars have even shown the language that looks most ordinary is better understood as part of the language of the law. The Fourth Amendment provides: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The word “unreasonable” is sometimes used as an example of a vague word in ordinary language that renders the meaning of a constitutional provision indeterminate. But Laura Donohue has argued that the word “unreasonable” should be instead read with the legal meaning of “against the reason of the common law.” As a result, the Fourth Amendment does not incorporate some free-floating reasonableness test, but a set of specific prohibitions of searches that violated the common law.