Monday, October 13, 2008


An interesting discussion going on at the Volokh Conspiracy:
You've probably noticed that with the election around the corner, a lot of people are saying some very extreme things about politicians. Politicians they don't support are not just weak, or poor choices for office. Instead, those politicians are dangerous, illegitimate, and maybe even criminal. Anyone who supports them must be disingenuous or in denial. We've seen a lot of that kind of talk all around the blogosphere, in more modest forms even at this blog.

Why? It's a complicated question, I think, but I wanted to offer some preliminary thoughts.

If you can get around the few kooks whose only comment was to say "but the other side really is a (insert ephitet here) because (insert diatribe here)" you'll find discussion of historical context (are we viewing past elections with rose-colored classes?), whether the percieved seriousness of the situation is exacerbating the problem, the recent experiments indicating that challenging a closely-held belief actually entrenches it more; etc.

They haven't really touched on my theory yet: 1) We're pack animals that need a team to root for, we "otherize" those outside the pack, and 2) We're damn lazy so we don't want to research all this stuff, we just want to tune into our favorite blogs/pundits and have them tell us what it says and what it means. They're paid to get an audience, which they get by being controversial. Thus, we're all about the controversial and have little knowledge of the intricacies - hence my utterly unconstitutional wish for an essay test requiring basic knowledge of both the workings of government and your candidate's actual position (along with at least one other candidate's position) in order to be able to vote.

Think about it - we'd all have to study the issues, or not pass our vote test. Candidates would have to focus on the issues to make sure their supporters could repeat them, or they'd lose all their votes. . . .

Yeah, it'll never happen. Not only is it unconstitutional, but it'd be impossible to get it graded without some kind of voter fraud happening (No vote for you!).

Anyway, if you want to read some good meta-discussion, that's one. Oh, and the post below it links to an awesome essay I'd highly recommend downloading if you need a little comic relief:
Based on a true story, this piece starts with a proclamation by Mother, the Supreme Lawmaker, that "no food may be eaten outside the kitchen." What follows is a series of rulings by Judges--father, babysitter, grandma (a liberal jurist, of course), etc.--who, using traditional tools of interpretation, eventually declare it to mean that all food may be eaten outside of the kitchen. Ultimately, the supreme lawmaker reacts and clarifies.

The piece is meant to demonstrate the following:

* We all regularly use the basic tools and modes of statutory interpretation;
* When we interpret pronouncements in real life, we resort to a mix of textualist, literalist, purposivist, legal process, precedent, and other techniques and sources;
* Although the various tools seem perfectly reasonable individually, in the aggregate, they can lead to ridiculous results;
* Even when we agree that the ultimate results are ridiculous, it is sometimes hard to pinpoint exactly where the error occurred;
* The legislature can sometimes clean up after bad judicial opinions, but it often takes a long time.
Freaking hilarious, and only six pages long.

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