So said Yale lawprof Akhil Reed Amar to WaPo journ-o-list Ezra Klein, prompting National Review's Matthew J. Franck to turn the question around exactly the way I was going to before I saw that Matthew J. Franck already had:
If the Court goes 5-4 in favor of ObamaCare, will that be, you know, like, a totally okay, nonpartisan, statesmanlike decision?But really how is a lawprof's life a fraud if it turns out that the Supreme Court is governed by politics, money, party, and party loyalty? As a lawprof myself, I see the Court as an object of study. Whatever it does, my work has meaning.
And looking back at what Professor Amar said, I now think he's being funny. I haven't seen his office, but I'm pretty sure it's damned posh — along with his salary — and not "silly" or "little" at all. Obviously, like any smart conlawprof, he knows that the real world of human beings interpreting the Constitution isn't pure, that human emotion, swirling with everything that affects human beings — politics, money, party, and party loyalty — must play its part. What would law — this law that supposedly matters — be without the human element?
It's inconceivable. Or if you could conceive of it — truly and honestly, without the impurities of humanity (and how would you, you being human?) — I think you would find it to be something alien, inhuman, and brutal, and you would never want to live under the regime called "the rule of law."
But Professor Amar, who is a political creature, with partisan and money-based preferences of his own, plays the role of the Yale law professor, applying political pressure to the Supreme Court and to the larger political mechanism (which includes the 2012 presidential election).
Are you enjoying the theater?
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80 comments:
I can't wait for the mass rhetorical suicides next week. Just like the '29 crash.
Well, if you want a non-partisan Supreme Court, you should not allow a president to nominate them. Get some other non-partisan or bi-partisan mechanism.
Are you enjoying the theater?
Not really. The plot's been done a million times and the acting blows.
Lesson from 2000: When you lose, cast doubt on the legitimacy of the process.
"Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty."
I thought that was a Darrell Issa quote.
Or Jan Brewer.
Or Sheriff Arpaio.
Or....
Yale lawprof Akhil Reed Amar's life may be a fraud? Because of a Supreme Court decision? Hilarious on levels.
His life is a fraud anyway. He pretends to study a document that was designed to guarantee liberty, and he claims it gives license to totalitarianism. He may as well be a geologist and a flat earther at the same time.
Am I just grumpy today, or does everyone Althouse link to today seem like they are whining?
If Akhil concludes that his life is a fraud he should quit the Law Prof gig and buy a motel...but he won't...'cause when the chips are down he really really likes living inside the buttercup, fraud an' all.
If he managed to graduate law school without understanding the meaning of "enumerated powers," then I am guessing his life is a fraud.
He should know. It sounds like he's right. His life IS a fraud.
Am I just grumpy today, or does everyone Althouse link to today seem like they are whining?
That's the effect A-House is trying to achieve.
The left is soooooo exhausting!
Whew!! I thought that the leftists were actually subverting the law, seriously damaging the economy, keeping the racial divides from closing, and ruining relationships with our allies.
Thank goodness it's just theatre!
I agree with every comment so far.
Prof. Amar should be pleased at the unanimity of opinion that he's a f***wit.
MadisonMan said...
"Am I just grumpy today, or does everyone Althouse link to today seem like they are whining?"
It is Friday, so you are probably in a good mood. Therefore, Althouse is linking to whiners. They seem that way to me and I am most decidedly in a good mood.
Althouse throws down!
Waiting for the Yale prof's response...
"The left is soooooo exhausting!"
Garage, it's YOUR perception. Own it! You perceive yourself and your own kind as utterly tiresome.
What will you do about it? Complain on a blog?
He's whining because he is forced to reexamine parts of his little world that he thought were fixed for all time. That the court might dare to deny the expansion of federal power by limiting the scope of the commerce clause was, until a few months ago, unthinkable by these very esteemed deep thinkers.
Amar spoke to our first year law school class in 1995. I just listened (and said nothing, good little Princeton-girl like). Amar was was brilliant, but also seemed very sure that he had all the answers.
Must suck for him to confront the reality that maybe life is more complex and law could actually change in ways that he did not imagine. But it hasn't happened yet.
If it does, it will be another example of conservatives bringing change to the status quo. And we know how people love them some status quo. Public sector unions and Yale con law professors included.
The separation of powers is NOT Roman Empire style. That is what these guys from foreign cultures want...an Empire that does us all proud where one man's words ARE the law.
we call that lawlessness.
Pelosi was prancing before the MSNBC cameras yesterday asserting that any failure to obey Obama Ceasar's Nationalized health care was politics done by rich men.
Of course with all these dudes, up is down and right is wrong. And please don't notice that they are being paid billions of dollars to sell us out.
Cap and Trade anyone?
The are constructing another frame work that views our blessings as coming from Obamatopia where the Emperor takes whatever we need from rich men and re-distributes it.
That is a lie, of course. A crazy loving lie.
Law only matters when the Lefties win.
Don't you know that?
"Law" is just a stalking horse for "politics, money, party, and party loyalty".
Yes his life is a fraud. That he may require the help of the Supreme Court to come to that realization is sad.
As long as we are dwelling in the subjunctive mood, what would it mean if it were decided 6-3 either way? Or 9-0? Neither is likely, but that's what's so fun here: we can speculate wildly about the present significance of future events without being called out for peddling horseshit like a band of soothsayers. But soothsayers at least have the distinction of projecting into the future rather than onto the future. Then there are those queers who flipped off Reagan's portait. They're stuck in the past. For them the past informs the present. Is the present really so dull that nobody wants to live in it? Well T.S. You don't have a choice. Whatever the court decides, its still the same court it was before it ruined Professor Amar's life, operating under the same pressures and prejudices as always.
Yale lawprof Akhil Reed Amar, eh?
Funny, he doesn't lookCherokee...
Am I just grumpy today, or does everyone Althouse link to today seem like they are whining?
Of course they're whining. No matter how many times Nancy shrieks that Obamacare is "ironclad," those stupid Koch-funded bloggers and racist teabaggers and their willing dupes on the Supreme Court will insist on frustrating their plans.
It's a very simple point - when the government controls your health care, they control you. Anybody who's paid attention over the last 30 years to smoking bans, ever-more draconian alcohol levels, banning of foie gras, removal of trans fats and the innumerable little restrictions the left has championed, it's no small step to see Obamacare as that desire to control, reward and punish writ large.
The left is soooooo exhausting!
No, sore loser. Just you
Garage is our pet troll. :)
Are you enjoying the theatre?
No!!!
Continuing the metaphor, the audience, except for boos and applause, has little control over what goes on onstage. But when the curtain goes down, we can go back to our lives.
Political theatre is the same (substitute voting for boos and applause), but the curtain never goes down, and we have to live with the consequences of what happens onstage.
Its tiring and stressful. Lord knows its not entertainment.
What if it is 5-4 to overturn but the fifth vote is Ginsburg? Is his life still a fraud?
And what about the politics and money in 9-0, 7-3 and 6-3 decisions? Is it only 5-4 decisions where those matter?
As usual it is "wrong" solely because he would disagree with the result in this case.
"The Founders intentionally politicized judicial appointments by vesting these appointments in elected executive and legislative officials."
Akhil Reed Amar, 2005.
Those bastards.
Anyone care to bet that Sotomayor votes with the majority? I would so love that, and it's not entirely impossible.
As a con law professor, Professor Amar's life is probably a fraud, whatever the Supreme Court does.
Oh boo-hoo. Of course your life is a fraud, especially in the fantasyland that is academia.
But he really is clueless, or perhaps just your typical ideological hack, if he has not understood constitutional law to be fraudulent and wholly political since at least Roe in 1973.
With the progressives it's always the same.. "If I don't get my way life is over! Democracy is over! America is over! If I don't get something for free at someone else's expense, I will never speak to you again!"
If the court rules in favor of ObamaCare's government over-reach, that will be a travesty, but life will go on. Life will just be a lot more expensive.
In engineering they say, "we can make the perfect machine, if it weren't for those damn people."
Liberals love "the rule of law" as long as they are making the rules, and the laws.
Anyone care to bet that Sotomayor votes with the majority? I would so love that, and it's not entirely impossible.
I've said 6-3 since the day oral arguments started and was only more convinced of that by the time they ended. I have no problem believing that the Wise Latina could vote for the majority.
If you want to see a White House that's so depressed it should be on suicide watch, imagine if the 6th vote were Kagan.
"Journ-o-list Ezra Klein". Heh - that's gonna leave a mark.
With the progressives it's always the same.. "If I don't get my way life is over! Democracy is over! America is over! If I don't get something for free at someone else's expense, I will never speak to you again!"
What's strange about this is that you don't seem to realize that some conservatives do this also.
The first clue that you're going to go wrong is your use of "the progressives." Like there's any such thing as "the progressives" or the "the conservatives".
Can someone provide the rationale for a sixth vote, please?
I has a bucket.
Yeah, baby!
Imagine what would happen if the Supreme COurt actually started to articulat a principled limit to COngressional power under the Commerce Clause -- perhaps saying that Wickard or Raich had gone too far?
Wouldn't that be a boon to the "legal academy" rather than rendering its work fraudulent?
I agree with him - it should 9-0. I expect 6-3 or better.
He's right about the profession too. I understand that the human element is what law is really about, so why do lawyers say all that other lofty shit, and why does a law degree involve so much reading and so little mandatory Jerry Springer?
Professor Amar shouldn't be concerned if his life is a fraud. That worked for Senior Lecturer in Constitutional Law Obama.
The Beltway mahoffs have f-ed up this country bigtime.
So why do liberals still believe the whole country should be controlled by a small group of central planners in DC?
I have also stated that, unless either one feels really strongly about the case, one can easily envision Kagan and/or Sotomayor joining an otherwise five-vote majority to strike down the individual mandate in order to prove their independence. After all, what difference does it make if it is struck down 5-4 or 6-3?
I can also see the severability issue going 7-2 or 8-1 to strike the whole thing if the individual mandate goes, considering the immense difficulty of having to try to figure out how all the interrelated parts go together and which can stand alone, such that Congress can start from a clean slate.
If either feels strongly enough about the issue(s) to remain in the minority, I would expect her to write a dissenting opinion explaining her reasoning.
"one can easily envision Kagan and/or Sotomayor joining an otherwise five-vote majority to strike down the individual mandate in order to prove their independence."
I doubt it. There's no real reason to prove their independence. Even if there was, they'd likely do it on a topic that's less dear to their hearts.
Aprilapple:
"With the progressives it's always the same.. "If I don't get my way life is over! Democracy is over! America is over! If I don't get something for free at someone else's expense, I will never speak to you again!"
You get at the core of this. It's emotional blackmail worthy of a 13-year-old girl. "Alright Mom, be that way. I'll just kill myself. My life is over anyway. Maybe when I'm gone, you'll realize that...." It amazes me that these people act as if they have a relationship - a relationship of the complementary neurosis variety - with the world. Electorate, politicians, court, are all subjected to the same drama that a weak and humorless parent gets all the time from the family brat. The family brat that they have created by indulgence and reinforcement. It's harsh when your blackmail bounces right off the world, just as if it doesn't even care.
Richard Epstein on rule of law, of you need a refresher.
He seems to find a way to study law as on object rather than the court.
Amar proves himself a fraud. His statement is purely political (and pathetic). The rule of law (our rule of law) allows for 5-4 decisions.
It also allows for judicial and legislative remedies for perceived injustice. I suggest, should he get his itty bitty heart broken next week, that he get off his whiny ass and use the rule of law in pursuit of justice.
He's Crying Man without the video.
First there was that hilarious video of Harvard's Roberto Unger. Now this piece of unintentional self-parody from Yale's Akhil Reed Amar.
It's as if Althouse is deliberately trying to make con law profs at higher-ranked law schools look bad!
Amar is awesome, truly. He's very much a textualist and the closest thing we have to a Hugo Black in academia. I think he would be an excellent appointment to the Supreme Court. Not shitting you. Like 1000 times better than the liberals currently sitting up there. Certainly a stronger jurist than Anthony Kennedy, who dictates his republican squishiness to us all.
Just to give one example of Amar rocking, he has argued quite well (convinced me) that the exclusionary rule is not required by the 4th Amendment and is a horrible rule.
Here are Amar's arguments on behalf of Obamacare. I think he's overreaching. To me Obamacare is unconstitutional because the administrative state is unconstitutional. The bill is so unwieldy and insane Congress didn't actually read it. I have all sorts of procedural issues with Obamacare.
But Amar makes several strong arguments, rooted in Constitutional text and history, about how Article I should be interpreted. Believe me when I say Akhil Amar is the sort of man liberals should be nominating to the Court, and conservatives should be confirming.
Read him before you mock him.
Skyler said...
In engineering they say, "we can make the perfect machine, if it weren't for those damn people."
In machining they say," We could make a perfect machine, if it wasn't for those damned engineers."
Melodramatic brazenly hypocritical whingeing, flipping the bird symbolically, ignoring other peoples' points of view.
Yeah, I remember when I was 13 ...
Yay, Coketown's back. Or maybe I've just been hanging out in the wrong threads?
St. Croix,
I'm not mocking Amar for his scholarship. I'm mocking him for his blatantly political and pathetic quote in the Post. Klein, another whiny little bitch, may be misquoting him. If so, he should demand a correction. He should also know better than to expose his reputation to hacks like that.
Skyler said...
In engineering they say, "we can make the perfect machine, if it weren't for those damn people."
Rusty said...
In machining they say," We could make a perfect machine, if it wasn't for those damned engineers."
Skynet says...
"Those damned people."
Folks, cool it down; better to be pleasantly surprised than disappointed.
This awful thing could still get upheld.
I mean, you have four Justices who'd uphold ACA even if it was a law to make Obama's job combine the offices of Chancellor and President.
And you have the "conservatives," at least two of whom periodically show signs of being undecided about whether that means conserving the general trajectory of the left-leaning social zeitgeist as expressed by previous decisions, or conserving -- which at this point means restoration, as with an ill-maintained historic home -- some semblance of the constitutional order of the Framers.
And then you have Kennedy, whose approach involves deferring to the outcome of the intensive legal research conducted by his quartet of clerks, who're apparently named Eenie, Meenie, Miney, and Moe.
Yes, I heard the questioning, too. And it sounded like it went pretty well for those on the side of light.
But it's a hard old world and truth and justice don't often prevail, even at the hands of a Justice.
So you never know. Let's play it cool, and if it turns out truth and justice DO prevail, then we can curtly remark, "good" and get on with the next fight.
Don't get cocky, kid.
"What mattered was politics, money, party, and party loyalty."
Says a man who has donated exclusively to Dem candidates and PACs totaling $5830. (dump his name here: http://www.fec.gov/finance/disclosure/norindsea.shtml to see)
"What would law — this law that supposedly matters — be without the human element? It's inconceivable. Or if you could conceive of it — truly and honestly, without the impurities of humanity (and how would you, you being human?) — I think you would find it to be something alien, inhuman, and brutal, and you would never want to live under the regime called "the rule of law.""
Humans have conceived/discovered mathematics, which is pure logic and is the same anywhere in the universe. It is certainly conceivable that humans could invent and computerize law that would be muuuuch purer, fairer, and cheaper than what we endure nowadays. We routinely are afflicted by judicial activism, prosecutorial misconduct, and jury idiocy. The human element is the weak link in our judicial system.
The cold, rational law of computer programs would eliminate the random bias, rank politics, incompetence, and corruption that prevails in our existing pathetic legal system.
One day, not too far off, our legal system will be much more automated and AI based. The primary impediment to this happening will be lawyers such as Althouse doing their worst to slow down this huge improvement to our legal system. She (and others like her) will reflexively oppose AI based law because it is beyond her capacity to understand (but at least understands that it will destroy her profession).
Creative destruction and reform of our legal system will devastate the legal profession and lawyers (most of whom are dems). Are there no limits to the good that creative destruction accomplishes? It is wonderful how it is always harming the dems. After the legal profession is mostly destroyed, America will be a much better place to live.
Good gravy, a "switch in time" nakedly showed that the Court can be primarily motivated by self-interest, the continual encroachment of the doctrine of incorporation displayed the Court's unabashed desire to increase its power and Griswold (and its progeny) clearly demonstrated the willingness of certain justices to subvert the law to their own visions of social architecture, and he's JUST NOW going to be shocked? GMAFB.
Klein, another whiny little bitch, may be misquoting him.
I think it's likely. Klein annoys me all the time. Amar isn't annoying.
"Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty."
What is so bad about this statement? Here we have Akhil Reed Amar, gained his undergrad at Yale, his JD there and had taught law there for decades. Surely he is smart, smart enough to know that few things are purely black or white.
The most cynical person may believe that justices decide first how they will vote and then work backwards from that with legal justification. Still, who doubts that every Supreme Court justice is smart and has able clerks? They will do a good job with the justification, a good enough job that their arguments have to be taken seriously even if they are found wanting in the end.
When reading the quote, did anyone else hear it in the voice of the "democracy is dead" crying man?
Steve Koch, for one, welcomes our new computer overlords.
Steve Koch,
"The cold, rational law of computer programs would eliminate the random bias"
Not really - it's just that the "random bias" would now be do to whoever wrote the program.
Are you enjoying the theater?
No, and am crossing Yale Law School off the list.
Dear Professor Amar, why wait for the decision? Do it now.
Scott said...
"Garage is our pet troll. :)"
Time for someone to call Animal Control.
No, and am crossing Yale Law School off the list.
Do yourself a favor, cross off the rest as well.
phx - Leftwingers, progressives, democrats, leftists, neo-Marxists, liberals. Whatever you want.
Progressive grabs them all.
Oh look, another standard lefty non-argument: "but you do it too".
Simon Kenton--
It's emotional blackmail worthy of a 13-year-old girl.
I would say that you just got to the heart of it.
I think our esteemed Yale Law prof is simply exhibiting a flair for the dramatic. Unlike people whose words are likely to be subject to hostile scrutiny -- e.g. practicing courtroom lawyers -- Prof. Amar sees no harm in indulging his theatrical muse and perhaps believes it keeps his students awake during lectures.
On a more substantive note, I don't understand why the academic acolytes for virtually unchecked Federal power (screw the states; they are the appendix of modern government) are surprised at the appearance of signs that the tolerance for unlimited federal power is becoming exhausted. For several generations, the Court's majority appears to have seen its job as figuring out a rationale for increasing exercises of federal power that could somehow coexist with a document which fundamentally seeks to limit government power, at all levels. Even such seemingly fundamental rights as free speech were subordinated to the needs of the federal state in the infamous Red Lion Broadcasting decision. Now, in yesterdays, Fox Television v. FCC Supreme Court decision, we are treated to the spectacle of Justice Ginsburg (!) and Justice Thomas (!) joining in a concurring opinion saying that the "seven dirty words" 1978 Pacifica decision should be reconsidered. Wonders never cease! While I agree with Justices Ginsburg and Thomas, I think Justice Kennedy followed the proper jurisprudential principle in deciding the case, as it was presented to the Court -- on due process grounds.
INCONCEIVABLE?
Well as Inigo Montoya said.., "You keep using that word. I do not think it means what you think it means."
Yea Obamacare being ditched is quite CONCEIVABLE!
Four justices believe the federal government ought to have broad powers, principally limited by the Bill of Rights. Four other justices believe the federal government has only limited and enumerated powers -- and that those limits exist independently of the Bill of Rights. Because Prof. Amar believes in governmental power, he applauds the first group in following its belief, and launches a political attack on the second group -- really intended for the swing justice, Kennedy -- for following its view. He is a professional fraud no matter which way Kennedy swings.
Here are Amar's arguments on behalf of Obamacare. I think he's overreaching. To me Obamacare is unconstitutional because the administrative state is unconstitutional. The bill is so unwieldy and insane Congress didn't actually read it. I have all sorts of procedural issues with Obamacare.
But Amar makes several "strong arguments, rooted in Constitutional text and history
When you say "strong arguments, rooted in Constitutional text and history", do you mean his assertion that "The obligation to care for the urgently sick—including the strangers in our midst—is ultimately rooted in morality and centuries of tradition"?
Or his claim that "the interstate problem is ultimately created by travel itself—travel that the interstate commerce clause in fact was designed to promote"? (Really? The interstate commerce clause was designed to promote travel?)
Or this: "The Militia Act of 1792 had a similar mandate, obliging Founding-era Americans to privately procure muskets, ammo, pouches, and so on"?
That mandate was an exercise of the militia powers of Congress. Unless Congress enlists every American into the militia, that power has no relevance to healthcare.
AprilApple said...
"If the court rules in favor of ObamaCare's government over-reach, that will be a travesty, but life will go on. Life will just be a lot more expensive."
Might not be as long though.
(seriously....)
"The obligation to care for the urgently sick—including the strangers in our midst—is ultimately rooted in morality and centuries of tradition"?
He's not saying there's a Constitutional requirement to care for the urgently sick. He's saying we've always done that as a society. Do you dispute that history?
It's quite common for people to show up at emergency rooms for emergency treatment without health insurance. These people often get treatment, are sued for payment and often have to declare bankruptcy. It's the most common cause of bankruptcy in our country. Are you unaware of this?
The interstate commerce clause was designed to promote travel?
Yes, travel and commerce among the states. Also travel and commerce with other nations. How do you think interstate commerce happens without interstate travel?
Unless Congress enlists every American into the militia, that power has no relevance to healthcare.
That's too simplistic. Amar's not arguing that it's relevant to healthcare. He's arguing that it's relevant to the argument that the federal government has an implied power to mandate citizens to do things. One can add that we also mandate people to serve on juries.
But that's where Amar's analogy might break down. We might argue that militia service, or juries (Amar likes to refer to militias as "armed juries") are duties that we citizens hold to our wider society. Since the Constitution mentions militias and juries, and those terms have common law meanings, they might imply a Constitutional duty placed upon the citizenry to serve their country.
An obligation to buy health insurance is a different animal. Are you "serving your country"? Amar might argue that. But there's nothing in the commerce clause that implies a citizen's duty to engage in commerce. Anyway, that would be the argument I would make back at him.
The biggest complaint I have about Obamacare is that it's a 2000 page monstrosity and the speaker of the house didn't bother to read it. In and of itself that's obscene.
I have seen his office. Its bigger than my living room.
And this is the dumbest thing he has said since he compared judge vinson to judge taney in dred scott.
yes, really.
The “fraud” the professor is living is that he actually gives a whit about The Constitution, constitutional law, teaching students, Yale, or anything else he might claim his life work entails. In fact, like ALL Leftists, he cares for one, AND ONLY ONE, thing—the advancement of worldwide Socialism/Marxism.
And this is the dumbest thing he has said since he compared judge vinson to judge taney in dred scott
I hope you're giving him some shit about it because Amar's comment is really stupid. Here I am defending the guy and he embarrasses the crap out of me.
Maybe we need a "Godwin's law of Nazi Analogies" for law professors who use the Dred Scott case. Are you sure that analogy holds up, professor? Do you want to examine the analogy for logical flaws?
I'm not sure "they're both called Roger" is working. You idiot!
I love Amar, though. He really is awesome.
In fact, like ALL Leftists, he cares for one, AND ONLY ONE, thing—the advancement of worldwide Socialism/Marxism.
For fuck's sake. Now you're embarrasing me. Anti-Communism is a noble pursuit. Just pull back on the throttle when you start seeing Communists under your bed, okay?
Possibly the worst Althouse thread, ever.
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