Tuesday, May 06, 2003

I have to admit that the notion of an intellectual conservatism is something that I find hard to take seriously. Jack Balkin has been having a discussion with a couple of people about Bush v Gore and constitutional change. The whole thing seems odd to me. That there is a distinction between High and Low politics should be obvious, and I'm at pains to understand how an educated person could imagine otherwise. The debate between liberals and conservatives, and between all parties in any sort of structured proceeding, is over where to draw the line beween civil argument and civil war. Balkin quotes from an argument made by someone [Larry Solum] against his simple logical points
"[T]he distinction between high politics and low politics .... [is a] conjuring trick. If the universe consists of decisions that are either high politics or low politics, then it's all politics. But it isn't all politics. The crucial distinction is not between political decisions that favor your ideology and those that favor your party. It isn't even between political decisions that are based on general principles you believe in and those which adopt principles you abhor to get to the results that you like. The crucial distinction is between decisions that are based on the law--on things like texts, history, and precedent--and decisions that are based on politics."
This is absurd.
Yes, it is beyond discussion, the [social] universe is entirely politics. But there is a difference between politics within a community and politics among communities. We have come together to form a union and have constructed a system of principles and rules, and we have agreed to allow these rules to regulate our political debate. Does this mean these rules aren't political? Not at all. Does this mean that legal debates are unpolitical? Go back to high school. The question of whether Roe v. Wade or Miranda were political in such a way as to be beyond the pale of civil discussion at the time they were decided is a valid one. To imagine, however, that the law is and should be apolitical is to confuse law with theology. I have no response to such illogic.

There is a need in some people to base everything on an absolutely solid foundation, even where none exists. The devine right of kings is such an illusory foundation. All that exists is our decision to form a union on certain principles, and to continue the line of those principles- which after all we did not invent- into the future. How we define them, how to enact legislation furthering them over time, that's the job of all three branches of our government, in various degrees of friendly partnership and antagonism. IT'S ALL POLITICS.

And on the subject of what's fair. The character from Volokh who calls Miranda "outrageous" (!?) might be interested in this unsigned SC decision made without even hearing argument. Texas Court Rebuked on Illegal Arrest
WASHINGTON, May 5 — The Supreme Court delivered an unusual rebuke to a Texas appeals court today by unanimously setting aside the murder conviction of a teenager whose confession, the justices found, was the product of an illegal arrest and should not have been introduced at his trial.
The decision... viewed the Texas Court of Appeals as having made such obvious errors in upholding the conviction that the justices overturned its decision in an unsigned opinion, without even bothering to hear arguments in the case.

Mr. Kaupp, who was then 17, was suspected of having taken part in the murder of a 14-year-old girl, but the Harris County Sheriff's Department lacked evidence to obtain a warrant for his arrest. Instead, six police officers went to his home in the middle of the night and, after his father allowed them in, roused him from his bed by shining a flashlight on him.
"We need to go and talk," one officer said, to which the teenager replied, "O.K." The officers then handcuffed him and took him to the police station, barefoot and in his underwear. There, after receiving his Miranda warnings, he implicated himself in the murder.

...While the opinion was unsigned, the tone resembled that of Justice John Paul Stevens. Although Mr. Kaupp received his Miranda warnings at the police station and waived his right to counsel before talking to the police, the court said, it is firmly established under the Supreme Court's precedents that Miranda warnings alone cannot erase the taint of an unconstitutional arrest.

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