Monday, September 21, 2015

"Bad law is law"

I'll briefly comment on this:

Unfortunately, TFan's analysis is persistently reductionistic. He never gets beyond the threadbare claim that a judicial ruling can have the force of law. That's a very simplistic view of the issue. 

He fails to distinguish between judicial review and judicial supremacy. He invokes Marbury v. Madison, as if I haven't taken that into account.

He neglects to engage the historical arguments presented by legal scholars I've cited, viz. Robert George, Ed Whelan, Michael Paulsen, Paul Moreno, Robert Lowry Clinton (and, most recently, Larry Kramer).

He's stuck on one controlling idea, which fails to do justice to a historically informed understanding of what our system of gov't amounts to.  

This is not a question of what it "should" be in some utopian sense, but what it was designed to be according to the Founding Fathers. I've been arguing for the latter, not the former. 

Finally, his latest response is already dated, because he ignores my reply to a comment he left on my blog. As I demonstrated, his position becomes a reductio ad absurdum. His post is at least one step behind the actual state of the argument at this juncture. 

1 comment:

  1. It almost feels like you're disappointed not to find anything to disagree with in my post. What did I say that's wrong?