Good Intentions

Tonight’s the Veep debate. Biden v. Palin, what a treat. This will, needless to say, be interesting. I’ll conjure up some thoughts after the debate, or you can catch me on Twitter (sarcascio).

Earlier this afternoon I went to a Federalist Society meeting. Now, for those of you who don’t know, FedSoc is the conservative/libertarian group who believe in a strict construction of the Constitution–meaning that what’s there is there and nothing should be read into it–and believe judges shouldn’t “legislate from the bench.”

That latter phrase is especially meaningless, because that’s essentially what the common law is. Court gets a case, there’s no statute controlling the issue, the judges make shit up based on vague legal authority and even more vague legal scholarship. Boom. Common law, until it gets overruled or reversed. Judges read into legislation all the live long day to find out what intent a given legislature has imbued into it. In fact, there’s a whole section of my Torts class where we talked about how judges were reading into criminal statutes what intent the legislatures had to see if they (the judges) could import that criminal statute into tort law.

Right from out of their asses, it came.

So anyway, I think “judicial activism” is a silly phrase, when basically the judiciary is always activist in some form or another to some group or another.

Anyway, the speaker was this fellow, Roger Pilon, who was an interesting speaker, to say the least. He definitely butted heads with some of the folks in the room, including this guy, Professor Sasha Volokh, who, along with his brother, run The Volokh Conspiracy. Needless to say, all of these people are really big deals in the legal world: Pilon is with the Cato Institute and has an impressive CV, and the Volokhs are equally impressive.

Pilon mainly talked about the 14th Amendment and how it essentially ruined America for all the libertarians out there. He wants to return to a very strict interpretation of the Constitution, one exactly and totally in line with how the Founders wrote it. He fully believes this is a tenable position to hold. I am not so sure.

I did agree with some of what he was saying: the government should only step in when the rights of a person or group are being trampled on by some other person or group. That is perfectly fine. However, Pilon paints the government as a villain in all that it does, not a necessary evil but an unnecessary evil. He also made some incediary remarks about how we are not all equal and that there is no equality of opportunity, only “equality under the law.” This is, of course, open for debate.

Anyway, this gentleman, Professor Peter Linzer, gave a rebuttal to what Pilon was saying and agreed with him on many things but also disagreed with him. He mainly diverged from Pilon regarding government intervention into the markets, citing the current crisis as evidence that a lack of government intervention is what caused this in the first place. Pilon countered with a vaguely “But Clinton!” statement, claiming that the Clinton administration wanted to broaden Fannie and Freddie’s ability to give subprime loans to people who apparently could not pay them back. Now, your humble author doesn’t know all the nuances of the crisis, so I will hold my judgment on this.

All in all, it was a very good lecture. Most people left around 1pm because they had class, but I stayed for about 45 more minutes to hear students (and Professor Volokh) try to argue against Pilon, who had a coherent response for every question.

I think this is why I came to law school, this fascinating exchange of ideas. It’s too bad you don’t really get that during class…