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« Why Aesthetics Matters More Than Politics | Main | The Court and Partisanship »
Wednesday
May142014

The Failure of The Politics of Law

(replying to the excerpts below).

The difficulty with the "high politics" thesis is whether it is falsifiable. In its best form, it should be a thesis to indict non-pragmatic decision making. But I don't think Sandy and Jack Balkin are doing that. For some unknown reason -- probably ideology -- many in this network use this picture as an article of faith. It paints a caricature that gets fed to students like candy.   

But rather than raise another generation of cynics, there is a better way. You should throw away this talk of politics, ideology and partisanship when discussing the Court. Instead, talk about whether any justice's positions are deficient, unreasonable, inferior or outdated for reasons that intelligent people could very well discern. There is no need to throw pies at these people -- none whatsoever. Either their visions are deficient or they are not. As more data comes in, and as history moves, these things become more clear. History's verdict is never that a justice was conservative; it is that he or she was wrong. If you are objective about the matter, you might find that both Republicans and Democrats each have good and bad ideas about the Constitution (over time). Professors are supposed to provide this kind of insight, not to stop the intellectual process by telling people that "oh they're doing it with their ideology" (whatever in God's name that means).     

There is nothing wrong, ethically, with any group, party, or individual having a vision of what a Constitution means. It matters nothing that any president or party had this or that view. Or that they picked this or that person. The fallacy here is to think that, if a party believes something, that the view must be dirty or somehow expose the fraudulent nature of the underbelly of law. The only thing that matters is whether ANY view about the Constitution is outdated or deficient, and why. For if the views are simply matters of reasonable disagreement, you have no choice but to note the boundaries of that disagreement and wait for further evidence to come in. You don't say "oh look at how the ideology is killing us."

John Kerry once called this liberal conservative stuff "silly politics." It's also silly science. This subject will always be about ETHICS (or asethetics). The political thesis will always be for those who don't want to labor for a meaningful critique. 

----- Original Message -----

Sent: Wednesday, May 14, 2014 5:09 PM Subject: RE: partisan splits on the Court

It is patently obvious that members of the Court all have their own "high politics," which tend to correlate with political party affiliation ... . I'm not willing to go to the mat over the word "partisan," so long as one realizes the role that ideology plays in giving meaning to what I call the Constitution of Conversation. 

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