An article passed along to me by my learned friend (far more learned than I) Paul Romano, written by Ronald Dworkin in April, 2010, from the New York Review of Books. (Paul, would you care to say a few words about Mr. Dworkin? I can say that he is a constitutional law scholar who is a professor at NYU, and has also taught at the University of Oxford and Yale; that in a survey taken by the Journal of Legal Studies he was regarded as one of the most important American legal scholars of the 20th century (this from a quick Wikipedia gloss).) It's on the long side, I'm not going to kid you, but it's a follow-up to yesterday's post titled Activist Judges on the Political Right, and I wanted to highlight two brief excerpts.
First, and the bolding is mine, to show that Mr. Toobin is not the only one presenting the simple facts of this judicial activism, a paragraph from near the beginning of the essay -
"In the 2008 presidential primary season a small corporation, Citizens
United, financed to a minor extent by corporate contributions, tried to
broadcast a derogatory movie about Hillary Clinton. The FEC declared the
broadcast illegal under the BCRA. Citizens United then asked the
Supreme Court to declare it exempt from that statute on the ground,
among others, that it proposed to broadcast its movie only on a
pay-per-view channel. It did not challenge the constitutionality of the
act. But the five conservative justices—Chief Justice Roberts and
Justices Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence
Thomas—decided on their own initiative, after a rehearing they
themselves called for, that they wanted to declare the act
unconstitutional anyway."
And, also -
"The Supreme Court of Canada understands the difference between these
different goals. Creating 'a level playing field for those who wish to
engage in the electoral discourse,' it said, '…enables voters to be
better informed; no one voice is overwhelmed by another.'”
No one voice overwhelmed by another - more speech in terms of the electoral process is always going to be good for our democracy, and isn't our democracy the point? The rich candidate bitching about campaign finance spending limits violating his or her 1st Amendment rights is still going to be heard all across the country. They are not going to be silenced. There will simply be the possibility of competition in the marketplace of ideas, and the voter-consumer can then choose the product they best prefer. But, of course, these same wealthy candidates who are almost always staunch "champions of the free-market" don't really want that competition - corporations are people, money equals speech.
And here's the link to the entire article should you be so inclined...
Everybody in, nobody out.
IBL:mm
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Dworkin was a philosopher of law first & foremost and his early reputation was based on that. Philosophy of law is a pretty specialized area, where philosophical analysis meets real-world institutions (Irene & I were lucky to have studied at Santa Cruz under another of the giants in philosophy of law, Richard Wasserstrom).
ReplyDeleteTo be able simultaneously to carry out the finely-grained and rigorous analysis that is the standard of Anglo-American philosophy *and* to apply it to actual institutions and practices (i.e., laws, the legal system, the Constitution) requires a suppleness of mind that few possess.
On top of this, there is an expectation in the Anglo-American 'analytic' model of philosophy (particularly in ethics & philosophy of law) that one's own beliefs ought to be either held in suspension or _validated philosophically_ (i.e., logically), which is an undertaking of exquisite difficulty. Political theory is (in that respect), easier than philosophy of law or ethics.
Anyway, Dworkin is able to do that on the highest level. His book LAW'S EMPIRE straddles the field of philosophical analysis & Constitutional scholarship and argument. If these names mean anything to others, you could think of him as standing half-way between John Rawls and Laurence Tribe.
My whole point being that he approaches law with an analytical rigor that few other Constitutional law commentators can muster.
Dworkin was a philosopher of law first & foremost and his early reputation was based on that. Philosophy of law is a pretty specialized area, where philosophical analysis meets real-world institutions (Irene & I were lucky to have studied at Santa Cruz under another of the giants in philosophy of law, Richard Wasserstrom).
ReplyDeleteTo be able simultaneously to carry out the finely-grained and rigorous analysis that is the standard of Anglo-American philosophy *and* to apply it to actual institutions and practices (i.e., laws, the legal system, the Constitution) requires a suppleness of mind that few possess.
On top of this, there is an expectation in the Anglo-American 'analytic' model of philosophy (particularly in ethics & philosophy of law) that one's own beliefs ought to be either held in suspension or _validated philosophically_ (i.e., logically), which is an undertaking of exquisite difficulty. Political theory is (in that respect), easier than philosophy of law or ethics.
Anyway, Dworkin is able to do that on the highest level. His book LAW'S EMPIRE straddles the field of philosophical analysis & Constitutional scholarship and argument. If these names mean anything to others, you could think of him as standing half-way between John Rawls and Laurence Tribe.
My whole point being that he approaches law with an analytical rigor that few other Constitutional law commentators can muster.
Thank you for this, Meester Paul...
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