Saturday, April 19, 2008

DeLong, fundamentalist.
Constitutionalists who disagree had better spend more of their time explaining to their fellow citizens what is wrong with torture than suggesting the problem might be cured by better legal methods courses in the first year of law school.
Arguing that Yoo could be subject to disbarment is not assuming that it will happen, only that that is the question that needs to be asked and answered.

What DeLong fails to understand is that the rule of law is not the opposite of the rule of man but only its mediation. Treated as an absolute every methodology becomes brittle and blunt. Here's a good reply.
I find this "debate" really confusing. As far as I can tell, Graber is essentially making an argument about the limits of efforts to use the Constitution as a blackjack against your opponents--something, BTW, that both sides in the sectional conflict did to ultimately murderous effect. Thus he's not really arguing that Dred Scott v. Sanford was "rightly decided" so much as that, in strict constitutional terms, it was as plausibly decided as the alternatives. Brad, on the other hand, *cherishes* his right to use the Constitution as a blackjack against his opponents. None of this has much of anything to do with the actual history. Could the slavery issue have been settled by constitutional means? Brad seems to be saying yes--at least if the Chief Justice in 1857 had been a philospher king named Brad DeLong, to whose judgment about the meaning of words such as "liberty" the fractious polity of the time would have simply deferred. But isn't profound division over the meaning of such words precisely the issue that wound up sending 600,000 soldiers to their deaths? I know nothing about Graber's politics, but his argument is hardly inconsistent with, say, that of a William Lloyd Garrison or a Frederick Douglass when they condemned the US Constitution as fundamentally a slaveholders' document. To attack him as a wingnut for pointing out the skeleton in America's closet--that slavery was so inextricably woven into the fabric of American life and culture as to require no less than a second American revolution--is, to my mind, profoundly ad hominem [I know, this is the blogosphere--ad hominem argumentation is respectable here] and intellectually dishonest. Yes, slavery is immoral, but that didn't make it unconstitutional or unAmerican prior to the Thirteenth Amendment, however hard Lincoln and Company tried to make it such; in fact, as little as it flatters our self-esteem to say so, it was all *too* American, all too rooted in our *real* value system, which prizes mastery over others at least as much as equality. Part of the tragedy/farce of the Civil War is the degree to which both sides played these silly legal-constitutional games; indeed, what's most striking about the Third Tribe, and their Radical allies, was their recognition that slavery could never, in the end, be extirpated in a nice, legal manner. That we continue to pretend that our fundamental law was, somehow but from the very beginning, antislavery has to do less with the actual historical record than with our own self-congratulation as Americans--and, I might add, our continuing obliviousness to the injustices still embedded within our notions of "liberty."
DeLong imagines that systems on their own can be just, but systems are only the means by which people live with one another. Systems must be flexible, and the relations of people to one another must be based on reciprocity. Rationalist fundamentalism is the child of textualist fundamentalism. DeLong's idées fixes represent both generations.

Mark Graber Dred Scott and the Problem of Constitutional Evil

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