Wednesday, June 18, 2003

The people at the ACS are still posting on ideology and judgeships. All their points are fine, but I'm still a little confused by the ideas of the people at the Federalist Society. I made my comments on the assumption that it is an acknowledged fact that judges 'interpret' laws, and the question is one of the limits of discretion. If no interpretation were necessary we wouldn't need judges at all, just words on paper. I suppose the first response to my comments would be that judges are appointed as neutral arbiters and not as adversaries. But if it were possible to be neutral in such a pure way, we wouldn't need an adversarial system to begin with. There is a difference between an idealist notion of truth and an essentialist idea of language -that is I suppose what the Federalists represent- but for all intents and purposes, is the difference enough to matter? The only thing I can think of is that the latter seems a little nihilist. Rightly or wrongly, as far as they're concerned, the decision has been made. And that means that what passes for truth is the will of the majority I guess. It's some weird Hobbesian mish-mash. Follow the rule because the rule is order, and without order there is chaos. But the rule is the will of the people, and the people are free to do what they want. On the level of sensibility this is strict, scholastic and very high church, but intellectually what they are defending is anarchy, the opposite of the rule of law. In fact of course their arguments end up defending the powerful, and this and not their theoretical defense of liberty, is the basis for their schoolboy arrogance. It's the contradiction in capitalist conservatism. Defending a radical ideal, it serves an extant social model that's absolutely reactionary.

I feel sorry for anyone who has to argue with these idiots. This level of anti-intellectualism precludes debate. They have too much to defend. It's like arguing evolution with a born again Christian who insists he's being rigorously logical. It's either frustrating or just boring.
In fact the same goes for Posner. Economic freedom, or even the illusion of it, doesn't interest me as a basis for moral philosophy. I was raised to think of greed as an inappropriate behavior, and I've found no reason to rebel against my training.

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