Saturday, June 19, 2004

"[W]hen there are legal arguments on both sides of a question--say, whether the Establishment Clause applies to the states--to adopt the side that has repulsive moral and political consequences is lunatic."

Brian Leiter on Justice Thomas, the "Lunatic Fringe," and the Pathology of Originalism And he replies to criticism here, where I first read the quote.

At some point, it comes down to preference. But preference as such is not something Leiter's legal philosophy spends much time discussing. His logic breaks down in the presence of the illogic of others. That's a condescending way to put it, but I can't think of another way. Leiter writes as a secularist but does so as it were, ex cathedra. But the point of democratic government is that in giving the mediocre their due, it keeps great men honest. And the fact is that Leiter should not be able to get away with simple generalizations in a discussion of a matter of law. For such a discussion of preference, and of changes in preference and how that should be reflected in legal interpretation, you need to go elsewhere. I think, for example, that the death penalty has repulsive moral and political consequences; others do not.

It is a lovely thing about scholarly life that all kinds of positions can be explored and defended, no matter how contrary to received wisdom, no matter how dangerous in their consequences... Justice X is not, to put the matter gently, a scholar. He is not engaged in scholarly debate or inquiry; he is advocating for a political revolution. On the basis of some scholarly arguments by others (not all of whom even endorse X's preferred result), he would push aside countervailing scholarly and legal considerations (including decades of precedent) ...What would that mean?
As for the Lunatic Fringe, Leiter and Thomas are both there, Lieter for his intelligence and (I would say) overly strict and brittle logic, Thomas for his lack of intelligence and his dogmatism.

I'm there too, of course.

No comments:

Post a Comment

Comment moderation is enabled.