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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.

Monday, August 25, 2003

Eugene Volokh takes a swing at homosexuality. He's taking advantage, again, of a vagueness he leaves around posts like this: Is he talking policy? or law? If it's policy, well, there's very little there that would prompt me, at least, to object; if it's law, though, he's way off base. Having watched similar performances for a while, now, my guess is, he will take refuge, if challenged, in policy, but wishes his audience to take it as legal argument instead, that it might gain some weight from his standing within the academic community, and, as long as he doesn't clear up that little vagueness, he hopes to get away with it. Then again, he has precedent on his side; it was just that sort of vagueness that allowed the Supreme Court to pull off Lawrence v. Texas.

The law must justify itself to the people; on that point Volokh and I would both agree. That is a far cry, though, from saying that the law must justify itself to the Supreme Court as the people's surrogate. The people speaks in many different fora and in many different ways -- in its constitutions, through ratification; in its laws, through its legislatures -- the one place it does not speak is from the bench. In this respect, the bench should not speak at all: It should listen, and then do what it's told. As much as the Academy might wish it were otherwise, it is the people, not the Supreme Court, that is sovereign, and its will ought to be respected, both for what it says, and (which is crucial for Lawrence) for what it chooses not to say.

The central point on which Volokh and I disagree, here -- or at least where I suspect we disagree, because he is, as I have said, at some pains not to express himself clearly -- is the presumption of validity: the idea that, where a legislature has acted, the burden should lie upon the opponents of that legislation to make a clear and convincing case why the Constitution does not permit that law to stand. The Academy declared war upon that presumption a while back. They know better than any pissant popular legislature how the just society ought to be governed, just ask them; they want squatter's rights on sovereignty itself, and only the presumption of validity stands in the way of their claiming the authority of final approval or disapproval, on whatever grounds anyone thinks to offer, of all laws whatsoever. Randy Barnett, Volokh's co-conspirator, is far more honest -- at least, far more clear -- about this (see question #4 here) than Volokh himself; he makes no bones about the authority he claims for the courts, and seeks to defend it, illegitimate as it is, where Volokh, to judge by his performances, hopes to slip it in without notice.

(Yo, Randy! You need to try your hand, again, at writing one of those "The Original Understanding of..." articles about the Ninth Amendment. Let's see how well your current interpretation survives the experience.)

Of all the distasteful spectacle afforded by Lawrence v. Texas, the part the Academy liked best was the vicarous thrill of watching the State of Texas, an erstwhile sovereign, groveling before the Supreme Court, forced to offer up arguments on the advisability of its law, as opposed to its constitutionality, as if that advisability were a question within the Court's jurisdiction. If the context is law, though, and not policy, the people is under no obligation to explain itself to you, Eugene, why it should wish to prohibit sodomy while overlooking the strict observance of the Sabbath. And if the context is policy, and not law, your opinion is no better than anyone else's.

-- posted by Clayton 8/25/2003 09:50:00 PM

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