Outside Counsel

Via The Morning News Things That Are Not In The US Constitution. Perhaps overly literalist-- the flaw with the sort of strict textual interpretation favored by Scalia and his ilk is that it fails to recognize that the Constitution emerged from a rich common law tradition-- and continues to operate in that environment. We do not have a code based legal system, which is, I think, the principle reason that our system has lasted in this form for as long as it has. The English will tell you that their legal system is older, and although you could argue that it has so fundamentally changed over the years that it really can't be said to be the same system, I say, what the hell, give them that much. Allowing that, then, the US legal/governmental system is the second oldest in the world-- and it didn't get there by being static. Credit Holmes for the development of American Common Law as a different sort of thing from English Common Law, credit Marshall for finding a way to make American Constitutional Law a dynamic force. It is embarrassingly stupid for Senator Christopher Dodd to come out with a remark like this, on Judge Roberts: "The open-ended question for us clearly is what are his views about some of the basic values, the equal protection clause, the privacy clause of the Constitution." (Via The North Coast). The Senate Judiciary Committee is the only committee in that august body with a specific membership requirement: you have to be a lawyer. Senator Dodd, a graduate of the University of Louisville School of Law presumably has had occassion to read the text-- and since Griswold v. Connecticut was already nearly ten years old when he was in law school, presumably he studied it. This is exactly the sort of thing that worries me: guys like Dodd, or Joe Biden, trying to question a lawyer like Roberts. Senators who may be all good intentions when it comes to safeguarding our constitution, who aren't even lawyers enough to fix a traffic ticket. Every year it is my privilage to serve as a judge for the University of Buffalo's Desmond Moot Court Competition, where students argue hypothetical cases based on pending Supreme Court matters. I am here to tell you that in the years I have been doing this I have never heard a lawyer or a student say something so perfectly jewel-like in its stupidity. Sometimes I think that it is only inertia that preserves our Republic. And then I wonder if it has been preserved at all.