Strengthening Constitutional Self-Government

No Left Turns

Unimpressive legal reasoning

Over at Mirror of Justice, Rick Garnett calls our attention to and comments on these two posts. Geoffrey Stone’s accusation that President Bush’s veto displayed "a reckless disregard for the fundamental American aspiration to keep church and state separate" is particularly egregious, since there was nothing particularly religious about his veto message, nor is there anything necessarily religious about the position he took. I’ll let the law profs have at one another over the rest of it, but will focus as well on this particular statement, offered in response to a House-approved measure depriving the Courts of jurisdiction over Pledge of Allegiance cases:

Note that he [Missouri Republican Todd Akin] believes the state should teach children that it is God, rather than “We the People,” who gives Americans their rights.

Stone apparently believes that "we the people" are the source of our rights. I suppose he’s entitled to be a legal positivist (although I think that that’s a terribly unsophisticated position for a professor at the University of Chicago Law school to be taking), but how, then, could he object to anything of which a legally constituted majority happens to approve (including school prayer, a total ban on abortion, or, perhaps, slavery, as was advocated by a famous denizen of his state some 150 years ago). Indeed, the more I think of it, he’s not even really a simple legal positivist, but rather a mere majoritarian, since he objects to constitutionally sound vetoes that allegedly defy the will of the majority du jour. This, as Aristotle points out in The Politics, is about as far from the rule of law as you can get. And he’s teaching where?

Update: Joseph Bottum has more.

Discussions - 2 Comments

Missouri Republican Todd Akin is nuts. I believe one his most recent statements was: "Marriage is not about love. It’s about a love that can bear children." Heh.



Majoritarians are almost as scary.

Akin is not nuts, he absolutely correct. Marriage is not "about love." If it were only that, then the State would have no business regulating it.

I can profess to "love" many things: ice cream, my daughter, my two cats, my aunts and uncles. These "loves" do not qualify me to enter into a matrimonial state with any of them.

Prof. Stone is definitely more nuts than Rep. Akin if he thinks "rights" exist only by popular assent or whatever mood the mob finds convenient from day to day. I’m surprised that a law professor could get away with such a silly, facile high-school-debate-team argument.

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