But it is this understanding of law which I find so problematic. Law is not, in practice, "consistent and free from self-contradiction."
Leo Casey
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I won't argue too strongly, except to say, Doug wanted a distinction between law and politics, and I provided one. It is a theoretical or ideal or philosophical distinction, not a concrete, empirical, or pragmatic one.
In the ideal realm, law is supposed to be internally coherent or rational in order to make self-consistent interpretation possible. This goes to the uniformity of a code and its application. Since there is no higher authority, we use rational consistency in lieu of divine right or edicts issued from the committee of public safety---exactly in order to escape the abuses of tyranny.
My primary reason for advancing this line of argument is probably too obscure.
The basic argument against most of the current Supreme Court rulings is that we don't like them. But to use that kind of argument simply follows the same moralistic and political path as the Right and leads to the idea that the only thing the Left doesn't like about the Court is that is too Rightwing. Hence, Doug's question to the effect, what's the difference between politics and law?
You have to come up with a different line of argument in order to step out of this lack of distinction. In an imaginary bill of impeachment (contemplated evidently within the National Lawyer's Guild) you can not charge that the Supreme Court justices were guilty of being Republican hacks. You have to articulate how they are bad judges. It seems to me, they engaged in the arbitrary selection of law, precedent, and principle assembled ad hoc to expedite some narrowly focused result that directly benefited themselves---and frustrated and denied the explicit vote of the majority of the people. That seems to me to be the very definition of a bad judge. Not only do they contravene the will of the people, but they benefit themselves at the expense of the people.
So, this sort of argument seems to go more directly to foundational questions, than the line that says, we don't like their Rightwing opinions.
Chuck Grimes