Category: Law

Deodand again.

A win for federalism at the Supreme Court.

From Randy Barnett:

UNLESS, Dorf really means that courts should avoid results that HE and those who agree with him believe are morally odiousness, though many Americans may disagree. In other words, judges should follow their own moral views (if they agree with Dorf’s) regardless of how widely accepted those views may be. But this methodology simply places the moral views of judges above whatever independent meaning the text of the Constitution may have. And you will remember from my last post that this is indeed Dorf’s position: “[C]ontrary to conventional wisdom,” he wrote, “constitutional doctrine typically trumps constitutional text – at least absent arguments of sufficient strength to overcome the principle of stare decisis.”

This is a prescription for what Larry Solum has called the “downward spiral” of judicial nominations. If the Constitution has no meaning independently of a judge’s own views of moral odiousness, then everything depends on getting judges who share your views of moral odiousness. But when there is substantial disagreement about what is or is not morally odious at any given time (as there always is about some matters but not others) then this becomes an ugly fight to the death where anything goes, which is exactly what has happened.

Read the whole thing.  There’s more posts on this topic here and here.  I would love to get the left on board with an originalist constitutional consensus, but I doubt they’ll ever be able to accept it.  And why should they?  Progressive thought has largely dominated for the last century, and I don’t see any signs that it’s going to be change anytime soon.  I think George W. Bush’s presidency might have been enough to get them to flirt with the idea, but they are seeing salvation in the possibility of Obama, and I think there’s a good chance they’ll get it.  Constitutionally limited government is a bummer when you’re in power.

Randy Barnett has a post up which is lengthy, but well worth the read, on new originalism vs. the living constitution.  It does contain a little bit about the second amendment, since I know most of us are interested in that here.  It amazes me how good of a litmus test your views on that particular topic are in terms of how you view not only constitutional interpretation, but on the proper relationship between a people and its government.

If you have some time to read, over at The Volokh Conspiracy, Ilya Somin and Orin Kerr have been debating the proper role of judicial review in our republic.  It’s well worth a read.

I tend to side with Professor Somin in this instance.  The idea of legitimacy through “consent of the governed” has always struck me as problematic, because I think the purpose of government, first and foremost, has to be the mutual protection of rights.  A “consent of the governed” legitimacy model surmises that the democratic process offers any meaningful consent.  I did not consent to have John McCain and Russ Feingold limit my rights to speak out against them in any meaningful way, yet all three branches of the federal government have upheld this, despite the fact that I believe the majority of people would recognize it was a violation of freedom of speech if it were explained to them in detail.

I do think the judiciary needs to be true to the original meaning of the law, and not impose wild and inconsistent theories about legal interpretation.  I want to understand the biases and philosophies of the judges we put onto the bench, because I don’t think there’s any theory of legal interpretation that will act as a bulwark against personal bias that will still preserve the court’s role as a check against the other two branches of government.  The judiciary needs to have an active in here, and ought not make a presumption that those branches will enact constitutional laws.  I think conservatives need to beware in restraining the judiciary, they don’t go so far as to make it a gaggle of “yes” men.

Armed and Safe is quite correct to point out that my Governor is a gun banning turd, but I did want to highlight something else he mentioned:

Alright, I have a big problem with this, even before we get to the “fight for three ‘gun-control’ laws” part. Whenever I see calls for “tougher penalties for shooting at a police officers [sic],” I get the impression that we are expected to believe that the lives of police officers are implicitly more valuable than the lives of us “Average Joes.” That’s a concept I utterly reject.

As long as proper protections are in place for self-defense, and the law requires knowledge that the person the actor reasonably knew, or should have known, the person he was shooting at was a police officer, acting in his official capacity, I have no problem with a law like this. But it’s not because I believe police should be considered by law to be a special class of “super citizen”.

The legal theory behind why shooting at, or murdering a police officer is a more serious offense is because it’s more than just an attack against another person, but an attack against civilized order. Riotous behavior is really, in theory, no more than a property crime in most cases. These days you really never see the authorities using deadly force on rioters, but in most states, it’s perfectly lawful to use deadly force on people engaged in riotous behavior. Under Pennsylvania Law:

The use of deadly force is not in any event justifiable under this subsection unless the actor believes that the use of such [deadly] force is necessary to suppress a riot or mutiny after the rioters or mutineers have been ordered to disperse and warned, in any particular manner that the law may require, that such [deadly] force will be used if they do not obey.

The reason for this is similar to the reason for making the penalty stiffer for shooting at a police officer.  Although rioting is typically a property crime, it is more properly a crime against order.  Civilization is but a thin veneer, and it doesn’t take much scratching to reveal the ugliness underneath, and our laws have tended to reflect that.  It is for that reason that we ought to treat assault against a law enforcement officer more seriously than we do other types of assault, not because they are a protected or privileged class of citizen.