Charlie Rose

tartufe  07/15/2009 05:17 PM Report

RE your erudition borders on the pedantic, e.g., what is your "mists of time" formulation? Does that translate to "religion?" And 'Whigs?' Wouldn't know one on the streets - unless they are a forerunner to 'Neo-cons?' Republicans their legacy? Are they inclined to conflate moral law (their version) and statute law? (When they can get by with it?) Are they particularly averse to common-law?

Your posts are interesting but often leave me with wanting a school-yard conclusion. My inadequacies can't handle facts alone. Out of my league. (Sigh.)

REMant  07/15/2009 03:35 PM Report

Despite her protestations that while she may sympathize, she only applies "the law," I still got the feeling from her remarks that Sotomayor believes that "the law" and the Constitution tells ppl what to do, which I consider a reversion to a pre-Holmes kind of legal formalism, where judges think they are not making law, but upholding the divine order of the universe as ordained in customary usage buried in the mists of time, a very Whiggish view of history.

This is objectionable on two counts: 1. that the Constitution doesn't allow it; and, 2. that is is bad philosophy. Certainly the Framer's Constitution tells the Federal govt what it may do, and in some cases specifically what it may not do, but it does not tell ppl what to do, and the only power that may lies in the states, not the Federal govt. Rather the idea seems to derive from the attempt to apply the Bill of Rights using the 14th amendment as a conduit, and in doing this advocates are doing precisely what the people who objected to a Bill of Rights feared, that like other positive grants in the Constitution it would resurrect the idea of rights of subjects dependent on a monarch, or liberties. Thus the right to free speech is interpreted to tell ppl what they can say or not say, sell or not sell, even think or not think. The right to bear arms is confined to certain types of arms and/or confined to govt organized militias, and so forth. But it is bad philosophy, too.

It may be argued that "the law" upholds right or justice, in the form of a common law, in a constitutional balance with the executive and Congress, but what would this be? If there really were natural rights, presumably none of this would even be necessary - they'd be innate. Ppl are not innately good. Madison was not alone in observing that. Like economists who do not seem to know that money is actually debt, it seems many lawyers do not know that "the law" is not a given, but something that must be earned. Just as the objective of economics is for ppl to be productive, the objective of law is for them to be good, or at least, act wisely.

We actually have three different systems of law, not unlike Montesquieu's analysis: one that is concerned with loyalty and feudal relations, the ruling principle of which is, as he said, fear; another with market relations, bribery and a status-driven sense of honor; and a third, which would fall in the category of the law of nature and nations, conduct evolved over time and considered therefore in some sense "natural." But it is not as the Whigs had it (and still would) something that existed immemorially, ready to emerge in full flower with the overthrow of tyranny. Holmes' historical investigations put the kibosh to that idea. However, it is not either a matter of expediency as he concluded, often scolding his clerks who spoke of morality. The common law, properly understood, is something pragmatic, discovered to work, but no less moral for that, because it is the only way in which justice can be sustained, and that is not achieved by beating or bribing them. In that it is really no law at all.