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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.

Friday, January 30, 2004

Eugene Volokh on a gay-rights flap in Belgium. One paragraph of Volokh's commentary needs a fisking:

Not long ago, that homosexuality was a perversion was the orthodox view. Free speech changed that; the gay rights movement, like the racial and sexual equality movements, was a triumph of free speech and public persuasion.
No, Eugene, it was a triumph of judicial activism over representative government. The public remains unpersuaded. Most of the public would prefer simply that the problem went away; left to itself, it wouldn't bother to exert itself one way or the other. And a substantial majority disapproves of the policy the courts are foisting upon it, though not enough -- at least, not yet -- to think it worth bitch-slapping said courts with a corrective Constitutional Amendment.
Now some people in that movement are trying to restrict others' free speech, to lock in their gains and to silence dissenters from the new orthodoxy. Understandable, as a matter of human politics and psychology -- but still improper.
There is no "new orthodoxy," Eugene. There are two small groups in opposite corners screaming at each other across a room otherwise full of the fastidiously indifferent. You shouldn't mistake the crowd you hang out with for a representative sample.

-- posted by Clayton 1/30/2004 08:35:00 PM | comments (0)

Eugene Volokh on an inanity from the Eighth Circuit.

Bit by bit the legal system is eating its way through what used to be the domain of private disagreement. Government lends its full coercive powers to the service of increasingly outrageous tantrums; the only position it will not back is the adult position that a civilized agreement to disagree ought to be, not only possible, but preferred; that litigation ought to be a last, not a first, resort; that the bench has a positive responsibility to avoid, not to encourage, its own entanglement in the pursuit of private malice. The parties here did not need a serious hearing and solemn adjudication of their dispute; they needed to have their asses summarily paddled and then be turned back out of doors with the stern admonition, "Now you kids play nice, you hear?"

It was just this sort of thing that finally prompted me to wash my hands of the Objectivist movement. No one could just agree to disagree on any topic, no matter how minor or abstruse; disputes would escalate, and escalate, and escalate, until they finally burst in a manner straight out of Lord of the Flies, and for the same reason. The self-proclaimed "voices of reason" turned out to be the ugliest lynch mob I have ever had the misfortune of witnessing in action, not in spite of, but because of, the philosophy they espouse: They have both the command of Ayn Rand, and the personal example she set for them, never to leave a disagreement lie.

Now it should be obvious that a civilized society cannot function this way. And given what the legal profession does for a living, what's coming up shouldn't be news to them at all, but they've forgotten it just the same: Disputation is an ineradicable part of human nature. This point ought to be equally obvious: If the full weight of the law is to be brought to bear on one side or the other of all disagreements whatsoever, the effective consequence is, men are forbidden to disagree. And if disputation is ineradicable, but its expression in words is effectively forbidden, the inevitable consequence will be, it will express itself in violence instead: The difference between a man berating his neighbor, and his popping him in the nose, is then merely one of degree.

Such a pretty goal the profession sets for itself. If it thinks "hostile environment" is good law, it ain't seen nothin' yet. To quote James Woods: "Guys, guys, relax. It's only halftime."

-- posted by Clayton 1/30/2004 03:18:00 AM | comments (0)

Monday, January 19, 2004

A high-level flyby of some of the problems our fractured public schools are causing for us (via Joanne Jacobs).

There are all sorts of things systemically wrong with our society right now, and almost all of them can trace at least one thick root back to education's slow downward spiral. That's a subject for a really long post, though, and it doesn't look like I'll have time to write it any time soon. Suffice it to say, for now: This ought to be the country's first domestic priority. I emphatically do not mean to say, we ought to nationalize education: I can think of few surer ways to make the problem much worse.

If I were asked, what single political act could we as a country undertake that would pay the biggest future dividends, I would say, bust education loose from the idiots who have made careers perverting it. This includes the following:

  • Disband every soi-disant School of Education at a public university, and purge its staff from the public payroll. It has been many, many years since the accumulated worthless "scholarship" reached critical mass, poisoning whatever few things might otherwise have been worthwhile, and the only way to deal with it is to throw it away and start over.
  • Eliminate all current credentials required in order to teach in the public schools. Those credentials aren't worth the paper they're printed on.
  • Evaluate credentials from those Schools of Education (other than those that have been foolishly -- disastrously -- required by law in order to teach) as counting against the one proffering them. Any honest person ought to be embarrassed to stand in such company.
  • Scrap all State curriculum requirements. Grab the curriculum requirements from, say, sixty or so years ago, dust them off, and start over. Hell, grab the textbooks while you're at it. They will be missing the last few decades' worth of technological and historical progress, but that's not a big part of what small children need to learn, and the results could not possibly be worse than what we have now. You will be surprised, also, how many incompetent teachers, currently sheltering behind meaningless credentials, this will bust loose from their sinecures.
  • Give school principals the unappealable power to hire and fire all other school staff. Establish, in each school district, the elected office of Visitor of Public Schools (for which office any degree or certificate in Education shall be a disqualification), which office shall have, as its sole responsibility, the unappealable power to hire and fire school principals. Eliminate the independent election of officers of the State Boards of Education, and make them wholly accountable for their performance to, and dependent for their continued employment upon, the State Governors. This will strip the schools of their insulating layers of unaccountable bureaucratic indifference.
  • Crush the public teachers' unions. Crush them utterly. Liquidate them and distribute their erstwhile assets back to the teachers from whom they were extorted.
Think we can manage all that by next Thursday?

-- posted by Clayton 1/19/2004 10:45:00 PM | comments (0)

Friday, January 16, 2004

Charles Johnson notes the new Iraqi legal order running off the rails.

I've always thought it was a mistake to invite the Iraqis, fresh from tyranny, to draft their own Constitution. The best favor we ever did Japan was MacArthur writing their new Constitution for them after their surrender; there's no way they could or would have done an even passable job of it, left to themselves.

-- posted by Clayton 1/16/2004 09:53:00 PM | comments (0)

Monday, January 12, 2004

Here it is again: Glenn Reynolds really likes Cryptonomicon. (Via The Volokh Conspiracy)

Eugene Volokh was in ecstasy over it too, as I recall. And I find this really strange, given that the plot driving the "modern" thread of the novel is basically one meritless legal action after another. A person looking for successors in the tradition of Bleak House would have to look long and hard to find another book as well done as this one, and with as low a view of the legal profession. Every plot-complication device impinging upon the progress of Randy Waterhouse comes in some form or other of high-stakes legal action, devoid of merit but still potentially ruinous, each more vexatious, more outrageous, and more extortionate than the one before.

(The sole exception is Randy's side trip to Washington to participate in the division of his grandmother's effects. The remarkable thing about this episode -- well, setting aside the bizarre means the family chooses for dividing her chattels -- is, there are no lawyers involved; I invite the reader to consider what that scene would have been like if there had been.)

Let's see. We have Attorney Alejandro, whose urbanity is the only thing he has to offer his client, since his skills at bribery are unavailing; in this book, Attorney Alejandro is the high point of his profession. We have Randy's ex-girlfriend's palimony attorneys, who crank out false community-property claims upon Randy's assets; we have Loeb Sr., whose all's-fair-in-love-and-war approach to a custody battle with his wife, involving "therapy" to "recover" memories of satanic ritual abuse, is presented as a large part of the cause of his son's mental illness; we have Andrew Loeb himself, a crusading barrator specializing in legalized extortion, psychotic enough to be credibly suspected of being the Digibomber, and whose graphic death, as the penultimate act of the "modern" thread, has the reader cheering. So thoroughly and unremarkably corrupt is the legal profession in this book that when the Dentist, visiting Randy in a Philippino prison, says to him, "I know you think I had you framed," there is nothing jarring about it.

Such is the luster the legal profession adds to the dramatis personae, and yet here are two lawyers who really like the book. Maybe it's one of those things like the joke about the Russian Jew who, when asked why he was constantly reading the anti-semitic press, responded, "to find out how powerful I am."

-- posted by Clayton 1/12/2004 10:51:00 PM | comments (0)

Thursday, January 01, 2004

Now this takes a lot of chutzpah.

The National and State legislatures have enacted many carefully crafted legislative schemes, only to have them fucked up by the Federal courts, often without even the slightest pretext that the rulings involved were required by the Constitution. I am aware of no such instance in which any Federal court has condescended to consult with the legislators and executives involved.

Were I in Congress's position, I would invite Rehnquist to pound sand up his ass. Perhaps O'Connor and Ginsburg can do it for him.

-- posted by Clayton 1/01/2004 11:21:00 PM | comments (0)




For the more forensically inclined