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« Is Constitutional Design a Philosophy or a Science? | Main | How to Judge a Constitution Properly »
Tuesday
Feb172009

How Violating Clear Legal Sentences is Still Following Law

[sent to conlaw prof re: how it can be "following law" if a judge violates a clear procedural rule in the constitution] 

... I'm not exactly sure I follow Sandy.

You are saying that "following law" means simply following in all circumstances and cases the truth value of sentences with computational grammar (e.g., president shall only take office on January 20). We can agree that these sentences are quite clear in what they assert. But we also must agree that the American legal system has other, no less important, legal sentences that say, in effect:

(a) Marbury rules (the constitutional system is in effect);
(b) any "constitutional" judgment that is not overturned by amendment stands; and
(c) [by implication from the separation of powers rules] that the capital spent on a decision should be affordable in terms of costs (budget reductions, jurisdiction revocation, court packing, long term damage to the court, etc.).

So following procedural grammar in every possible case cannot be a good criterion for "following law" where that means to deactivate other legal sentences. In fact, that is not a distinction; it's a program. If the Court successfully ruled that pre-inauguration was warranted, the decision would in no way be "illegal" because the result violated procedural grammar. In fact to assert this would be to assert only one's philosophy of law (only a different product).

Therefore, because law = substance + remedy, one can never say "did you follow law or policy," but only "was your casuistry good?" That is, would a pre-inauguration decision ever have integrity? To answer this, one would need to examine the circumstances of the casuistry. Have all the leaders been assassinated? Is there a mass death and disease or civil war? What does natural law say about pre-inauguration? You know, children Kings were given regency councils until they reached maturity. Don't rules of survival logically trump rules of procedure? Show me one example (other than bureaucracy) where one follows standard operating procedure over and above survival procedure in times of extreme chaos and threat.

The only question you must ask yourself is: what is your brain doing when it "judges." Is it doing the Sergeant Shultz thing --  "I know nothing ...  I can only read." Or is it doing something else: "meaning is given ordinary sense in ordinary context; meaning is shifted or supplemented in extraordinary context, because this is what the judging brain is for."

If you are a Wittgensteinian, you will see the shallowness of particular language sets (law/policy). If you are a Dworkinian, you will try to make larger sense of what happens after the Ludwig in you has demonstrated this facile grammar. One wrecks the house of cards; the other seeks a new engineering project.

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