< meta name="DC.Date.Valid.End" content="20050825"> Amendment Nine: "Sometimes, a Fool is just a fool."

Tuesday, May 03, 2005

"Sometimes, a Fool is just a fool."

Armando, a front-page contributor to dKos, is either a fool, a moron, or both. In his latest excruciatingly long front page post, he rips those ripping the filibuster repeal movement, including Professors Juan Cole and Cass Sunstein; who I have it on high authority are both bright, well-spoken, and perhaps even well-read intellectuals. Of course, before exposing himself, Armando gives the obligatory "I definitely agree with this and that and this part too" and then lowers the boom "but I disagree with" ... Where I went to college, back when students were required to read, we had a Greek expression for this rhetoric: "men ... de". And we all noticed it was employed most frequently to obfuscate transparent mendacity. The whole of Armando's screeching may be found here.

After a brief perusal, I was struck by the thumetic charge of Armando's post. He was clearly advocating a position that sought to place objective standards into an otherwise ideological debate; the confirmation of judges. In his view, Republican partisanship against Clinton appointees was merely ideological, whilst the same could not fairly be said of Democratic partisan maneuvering against Bush appointees. Instead, he felt confident that judicial temperance, or lack thereof, was the critical inquiry and Democrats had correctly objected to those scoring too low on the temperance scale. So I asked what seemed like a simple question, prefaced by a stipulation that some scholars use the Lochner opinion (bottom few paragraphs) as an example that results based judging has its own philosophy. My question was, simply, could it be the case that "results based judging", which Armando equated to judicial intemperance, is in fact an ideology unto itself?

The response was less than reassuring. He instructed me to read (ironically it turns out) the Slaughterhouse Cases to see why my question, and the whole "substantive due process canard" was simply a "red herring" (again, ironic term usage). It just so turns out I'm quite familiar with Slaughterhouse. And was unaware that the dead-lettering of the privilege and immunities clause of the 14th Amendment had anything at all to do with my, much more philosophic, if not logical, question on results based judging. I replied in kind. To which Armando laid bare what I had long ago suspected... he's an idiot.

"Because substantive due process, the target of conservatives for their accusations of results based judicial activism, springs from the destruction of the P&I clause. Pretty simple really."

Scratching your head? Me too. Like a first year law student, Armando hears the word "Lochner" and quickly shouts back "Slaughterhouse" without ever reading the question. Armando knows that the right order is Slaughterhouse then Lochner, but again, he never read the question! He even throws in a pedantic reference to Llewellyn (which I take to be a reference to legal realism, and according to the order, follows right after Lochner!). Does this yelping recitation without any supporting reason remind you of something?

No Armando, it isn't simple, really. Firstly, substantive due process does not spring from the destruction of anything. Sure Slaughterhouse (1873) is often used as an introduction to substantive due process in a first year Conlaw class, but that fact alone doesn't mean anything on its own. Substantive Due Process was alive and well long before Lochner (see Herbert Spencer's Social Statics, from 1851. Spencer argues for a "law of life" and "natural law" which restricts the only legitimate use of government to the police power and individual rights protection... sound like a certain Justice you may know? Similarly, see Cooley's Treatise on Constitutional Limitations - from 1868 ). If substantive due process theory springs, it springs from classical laissez-faire philosophy like that articulated by Cooley and Spencer , or from legal formalism itself (assuming its stipulated there's a difference between the two-which is conventional, but in my view, incorrect). Secondly, conservatives are not targeting substantive due process. If anything it is quite the opposite. The libertarian impulses of Justices like Scalia, and the originalist impulses of Justices like Thomas, make such an assertion absurd.

A cursory glance of literature dealing with laissez-faire Constitutionalism and substantive due process would undoubtedly have clued Armando in. Yet, there he was throwing around loaded phrases like substantive due process and citing to cases like Slaughterhouse. There he was arguing this was all so simple. And still it turns out, he is either using all these terms unknowingly, or unwittingly, or both.

Coincidentally, another dKos user emailed me the following quote from Armando, made just a short time ago: " Idiotic is people talking about something they clearly have no knowledge of." Well, Armando, you certainly are the expert!