Sunday, November 09, 2008

Sunday Open Thread: Post-Election Edition

This Hugh Laurie song (hat tip: HBL) hits today's nail right on the head:

Yup, all we gotta do is . . .


Burgess Laughlin said...

I have never studied law. I have a question for lawyers, historians of law, or philosophers of law.

My question is: In a proper society, how should a supreme court interpret the meaning of the constitution? By what historians say the writers of the constitution meant in their time (objective or not); by possibly subjective "evolving standards" of the community; or by other standards such as the objective meaning of concepts as they should be logically created?

My question arose while reading this brief weblog article. I think I see a flaw in the weblog writer's argument against Thomas Bowden's statement, but I am not sure.

That article refers, in turn, to an article by Thomas Bowden, writing for The Ayn Rand Center for Individual Rights.

This issue matters to me, even though I am a layman, for the simple reason that I live in this society and I would like to know the basis of law, especially the fundamental laws that ultimately affect the quality of my life. I would also like to know whether ARI, and Thomas Bowden in particular, are publishing errors as the weblog writer claims.

Nicholas Provenzo said...

Burgess Laughlin wrote:

> In a proper society, how should a supreme court interpret the meaning of the constitution?

CAC's position can be found in the text of the brief that it submitted to the Supreme Court for Nike v. Kasky. Basically, we show that the Constitution protects the unenumerated rights of the people and that reason is means by which these rights are identified.


Nicholas Provenzo said...

It seem the URL got cliped. See:

Burgess Laughlin said...

> ". . . reason is [the] means by which these rights are identified."

So, in other words, objective philosophy--not some notion such as "evolving community standards"--sets the context.

I have begun reading an essay (Duke J. Const. L. & Pub. Pol'y 159 (2007) by Tara Smith, here.

She appears to be making the same point, but I have not finished the essay.

Andrew E. said...

Good times. And of course I'm embarassed to admit that I found P.G. Wodehouse through Hugh Laurie (and not the other way around). Funny stuff.

Doug said...

Burgess, that article by Tara Smith is excellent! I highly recommend that you finish it.

Burgess Laughlin said...

Doug: "Burgess, that article by Tara Smith is excellent! I highly recommend that you finish it."

Thanks for the recommendation. I have taken one step even further. I have listed it in the Prospective Study Groups list (linkable from the home page of SGO:

It is in the Philosophy section:

Tara Smith, "Why Originalism Won't Die--Common Mistakes in Competing Theories of Judicial Interpretation" (Duke Journal of Constitutional Law, pp. 159-215).

C. August said...

Thanks for the recommendation and link to the Tara Smith article. It just moved to the top of my reading list, because she discusses Cass Sunstein. He is a Constitutional law scholar at Harvard, formerly of U of Chicago, and colleague and friend of Barack Obama. He co-authored the "libertarian paternalism" book, "Nudge", which was reviewed in the most recent issue of The Objective Standard.

When I was doing some looking into his background a couple of weeks ago, I found out that he was Constitutional law expert, that he was a friend and adviser of Obama, and I immediately thought he would be on the short list for the Supreme Court if Obama won. I checked around, though, and no one had him on a possible list.

Until I read the Boston Globe on Friday, and he described as being on the short list for Obama court appointment possibilities.

Based on what little I know of him, this would be very bad for individual rights, but I'm looking forward to learning more about what he specifically advocates as the proper way to interpret the Constitution.

But with titles like The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More Than Ever, and Free Markets and Social Justice in his CV, I think he would be disastrous on the Court.

Here is an excerpt from the Amazon review of Free Markets and Social Justice: "In the broadest terms, this collection of articles argues that achieving social justice should be of greater importance than the purity of free markets."

Anonymous said...

At the last OCON I think Tara Smith described Cass Sunstein as a real-life Ellsworth Toohey.