Friday, April 10, 2009

And for an example of a less impressive student commentator:

Read Taylor Kessinger in the Daily Wildcat kick a dead horse and slip in a few trite remarks about capitalism in the process.

"Original Intent" is a dead legal doctrine. Dead like Richard Nixon, Optimus Prime, socialism, George Mason, and Jesus. Dead. The mere idea that the U.S. Constitution had a singular original intent is nowadays considered ridiculous, and has been for some time. The Philadelphia Convention was a summer-long argument, and as soon as the fifty-five delegates left the room there were disputes over the nature of what they wrote. "Original intent" remains a trope on the far right, at its best shorthand for an aretaic vision for the U.S. based on a founding myth, but it's not taken seriously by legal scholars. S

So why write over five hundred words condemning it? Because it's an easy target? Hang around any college long enough and you'll hear heartfelt condemnations of fascism, which is also dead. But you'll have to strain to find the same invective directed against e.g. social democracy. Kessinger's a reasonably sharp guy, perhaps one who even understands that column-inches are valuable and wouldn't waste them on something he knows to be dead. So maybe he doesn't know that it's dead. But if he doesn't know that original intent is dead, why would he deign to write about legal theory in the first place.

It gets goofier.
So-called "originalists" like Antonin Scalia, as well as "paleoconservatives" like Ron Paul, are like Biblical literalists: They claim to be unbiased and to have a magical, direct conduit to the writers' intent, but they don't.
Not all originalists do the original intent thing. Most don't, because original intent jurisprudence is dead. Scalia certainly doesn't, and if Kessinger can point me to a counterexample, I'll buy him a pizza. Like Clarence Thomas, he's a textualist of the "original meaning" variety, which is a much different school of thought than original intent. And Ron Paul's reading of the Constitution is an unscholarly, self-serving, maybe-sincere sui generis mashup.

And starting again from the top, goofier still.
It's the legal discourse equivalent of Godwin's Law.
Except it's not, because it doesn't come up at all in serious legal discourse.
Take a look at the Second Amendment. From an objective point of view, the sentence simply is not very well-written; its meaning totally changes depending on whether or not the second clause ("the right of the people to keep and bear Arms … ") is meant to be dependent on the first ("a well-regulated Militia, being necessary … "), as well as whether the first comma is omitted or not.
This may be "an objective" point of view but it's also naïve; this has been dealt with decisively over the last few decades; Kessinger might find Larry Tribe's remark in the third edition of American Constitutional Law a palatable place to start. Worth noting is that the Second Amendment is one place where original intent jurisprudence can almost be done, and it gives quite a different answer than the textual originalism brought to bear in the Court's decision in Heller.
and that gun ownership is not usually an effective form of self-defense
Where? Perhaps Kessinger is technically right on this one, since merely owning a firearm isn't a form of self-defense at all, but if he intends that to be a claim that firearms are not effective tools for self-defense, it's so ridiculous that I doubt he could overcome the burden of proof. Kessinger's a small, skinny guy, too--I wonder what his take on self defense is. I'd recommend a semiautomatic pistol.
Similarly, if they knew what we know today about how badly capitalism fails at safeguarding the environment or ensuring universal access to health care
To say that "capitalism" fails at safeguarding the environment or ensuring universal access to health care is to say that there is no way to change the regulations defining a market system so as to safeguard the environment or to fix some failure of the health care market that has services underprovided to paying consumers. Ronald Coase would vehemently disagree on the first point. Peter Orszag, Robin Hanson, Uwe Reinhardt, John Cochrane, the people of Singapore, and did I mention Uwe Reinhardt? could set him straight on the latter.

One thing we're not teaching in the schools, or that the students aren't learning, is scholarly modesty. I'd be embarrassed to have my name in print associated with such wild claims. I wouldn't write about such disparate topics without being confident that I knew a little something about each, and then still I'd do so from a position of modesty. It's worth noting that what Kessinger does here by repeating trite hipsterisms about legal theory and half a dozen other topics, many free-marketeers--someone at the Goldwater Institute who'll go unnamed immediately comes to mind--do by repeating red-herring arguments about global warming.

Anyway, I don't even mean to pick on "the kids", but now that you have a basis for comparison, you can see why I had good things to say about the Desert Lamp guys the other day. Good commentary does not consist of repeating something some smart person said. Modesty and skepticism need to be brought to bear.

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