getting over Bork, restoring our depleted legal capital

[Lawrence Solum]

I am not quite sure, but I believe that there is a crucial ambiguity
in Mark's claim that "the constitutional visions advanced by
conservatives . . . rest on contested historical and value judgments
and so are only as good as those judgments."

This claim can be interpreted in at least two ways.  First, Mark might
be claiming that constitutional visions--by which I assume Mark means
to refer to normative theories of constitutional interpretation and
adjudication--are given their normative justifications on the basis of
both empirical and normative arguments which are contestable or
actually contested.  For example, there are various strategies for
arguing for constitutional originalism--popular sovereignty, rule of
law, etc.  If the arguments fail, then the theories fail.  I assume
that most constitutional theorists would agree with this modest claim.

Second, Mark might be claim that constitutional visions are contested
or contestable on the same grounds that positions in contemporary
political discouse are contested.  In other words, Mark might be
claiming that the justificaiton for originalism (for example) will
succeed or fail if and only if some subset of the normative and
empirical beliefs of conservatives who advocate originalism are true
or accepted as true.  If this is Mark's claim, then I think that the
claim is controversial (at a minimum) and demonstrably false (more
ambitiously).  One simple way of making this point is simply to
observe that their are coherent forms of left formalism and left
originalism.  If this is true, then the second version of Mark's claim
is false.

For what it is worth, I did not find Mark's claim to be
consdenscending in any way.

On 10/12/05, Mark Graber <mgraber at gvpt.umd.edu> wrote:
> Huh.  I'm all for distinguishing between good legal judgment and
> partisanship.  And for that matter, I am all for making moral arguments.
>  The point is simply the following.
>
> 1.  Good faith disagreement is a fact of political, legal and
> constitutional life.  The claim "some moral/legal/constitutional
> propositions are true" does not help us determine whether such
> propositions as "abortion is immoral" or "the constitutional protects a
> right to abortion" are true.
>
> 2. Disagreements occur even when people are exercising legal judgment.
> Look at Shaw v. Reno where it might be argued that every member of the
> court is supporting a principle that harms their political sponsors.
>
> 3. To be very clear, nothing I have written the past few days is a brief
> against the constitutional visions advanced by conservatives.  The claim
> is simply that they are not neutral or apolitical, but rest on contested
> historical and value judgments and so are only as good as those
> judgments.
>
> MAG
>
> >>> Douglas Casson <casson at stolaf.edu> 10/12/05 8:27 AM >>>
>
> Professor Graber's condescending tutorial in "Philosophy 101" boils down
>
> to this: people disagree and no appeal to morality, neutrality or
> objectivity can resolve their disagreements. When we apply this insight
> to the realm of law we can conclude that "legal judgments inevitably
> involve contested value judgments."
>
> Yet for me the question is not whether judges make "value judgments."
> Certainly they interpret the law in ways that are often controversial
> and fail to resolve disagreements. The crucial question is whether we
> *can* and *should* make a distinction between vulgar partisanship and
> good legal judgment. If, in our philosophical sophistication, we
> jettison all criteria for distinguishing between the two, we are left
> without a common language for discussing fairness and corruption. Legal
> debate is reduced to preference articulation and legal judgment is
> reduced to preference imposition.
>
> Surely most of us most of the time find ourselves somewhere between the
> radical relativism that Powers frets about and the natural law position
> that Graber ridicules.
>
> Doug
>
>
> Douglas Casson
> Assistant Professor of Political Science
> St. Olaf College
> Northfield, MN 55057
>
>
>


--
Lawrence Solum
John E. Cribbet Professor of Law
University of Illinois College of Law
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