lessig on eldred and the five

andie nachgeborenen andie_nachgeborenen at yahoo.com
Thu Jan 16 15:41:40 PST 2003


Why is it so hard for Lessig to understand that the Court is lawless? First, it's a lawyer's occupational hazard to want to believe that we operate in a world or more or less predictable rules, not a random game of power and rhetoric. Maybe it's worse for a law professor, who has to teach a more or less coherent doctrine. I and most of the other lawyers I knew were genuinely shocked by Bush v. Gore, not merely outraged at the result.

Second, because at the lower court level, at least in the federal courts, mostly judges do follow the law. They don't always understand it, but when they do they try to follow it.

Third, this is an usually lawless Court. We have not seen its likes ince the bad old days of the Lochner Court. We lawyers have been raised by the likes of Lessig with the following story. Once upon a time there was a Bad Court composed of justices who believed taht the due process of the constitution mean they could impose their prejudice of laissez faire economics to override social and economic legislation implemented by the legislature. They sat for a long time, and Justice Holmes gave them what-for, but they didn't listen. But Lo! In the middle of the Great Depression, one of the Bad justices saw the light, and the Court realized that except where fundamental rights expressly stated in the constitution, or the oppression of the discrete and insural minorities, the legislature got to make the law. And so the Bad Old Lochner Court went down in disgrace, and ever since, Courts have confined constitutional lawmaking to defending individual rights and oppressed minorities, while letting the legislature happily pack its barrel full of pork. And everyone lived happily ever after. However, with the Rehnquist Court, we have Five who think that they can see taht the New Deal Court got it wrong,a nd now they are back in biz, not using the same tools (the 11th Amendment is more favored tahn the Due Process clause), but up to the same old tricks. This upsets the story, and Lessig, and me.

jks


> The principle is very simple. A "strict
> constructionist" is not
> someone who construes the Constitution strictly to
> make our
> government one of limited powers. A "strict
> constructionist" is--as
> Rehnquist wrote back at the 1970s--somebody who is
> hostile to civil
> rights plaintiffs and hostile to criminal
> defendants. The point of
> saying that the Commerce Clause is only a limited
> grant of power to
> Congress is to roll back first the Great Society and
> then the New
> Deal. There is no similar point to saying that the
> Copyright Clause
> is a limited grant of power. So why bother to say
> it?
>
> Why is this so hard for Larry Lessig to understand?
>
>
>
> Brad DeLong

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