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"Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance."
     -- Joseph Story
     Commentaries on the Constitution of the United States
     Book III, § 1857.
 

Thursday, July 24, 2003

Eugene Volokh on the Secret Service and discretion. I'm a day late to the party, but here goes.

As a practical matter, Volokh's observation about discretion makes sense. We would also have to add in, though, that what would otherwise be the ordinary and unremarkable discretion of public officials has been, for many years, under withering attack from the legal profession -- I've seen it from Volokh himself in other contexts -- unless, of course, those officials sit on the bench. The profession has pushed the idea of "due process" so far, and into so many nooks and crannies, that any variance in any part of a process stands a good chance of invalidating the whole. Assuming the Secret Service was acting rationally, the assessment would have been, "It's almost certainly nothing, but, if we just ignore it, it will come back to haunt us as a collateral challenge in some other, much more serious case."

This is pretty much the same point Dan Simon was making, except that he was talking about the interferences of pressure-group politics, and I'm talking about the interferences of the legal profession itself. And it is worth noting, pressure-group politics would be much less of a bother if the legal profession were, shall we say, a little less engaged in handing those pressure groups meritless victories.

-- posted by Clayton 7/24/2003 02:50:00 PM


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