Thursday, December 10, 2015

Old point but a good example of the geek misunderstanding of language.
Pet Peeve
People who assert things are "constitutional" or "unconstitutional" without qualifications. Unless there's a relatively recent ruling which applies 100% with no wiggle room to the issue at hand, it's never certain. It's constitutional/unconstitutional if the Supremos say it is.
Legal reasoning

Law is a process not an object.  If I say X is unconstitutional it means I think X is constitutional, or even, I take it for granted that X is unconstitutional. Don't you? That's an argument, a pole in a debate. See comments on Leiter, and here.
Voting is not about trying to get what you want; it's not concerned first with individual choice, but with marking collective change. People who argue against voting because their interests will be diluted should also divorce themselves from politics altogether even in casual conversation. Voting is no more than one point in time in our collective debate. Whatever individualists may want to believe, society situates the individual, not the other way around.
Jack Balkin in  2007
If the Supreme Court eventually holds that the Second Amendment protects an individual right, it will largely be because social and political movements changed popular opinion and influenced elite legal opinion. These changes have been coming for some time: The Bush Justice Department has already adopted the individual rights position, and so too has the D.C. Circuit in its recent Parker opinion.

This is not the first time changes in popular notions of the Constitution have influenced legal doctrine. In fact, social and political movements' efforts to change constitutional culture and popular opinion are among the most frequent mechanisms through which lawyers and judges change their minds about the meaning of the Constitution.

No comments:

Post a Comment

Comment moderation is enabled.