“There is all the difference in the world between having something to say and having to say something,” said John Dewey in The School and Society (1899), in which he had something quite important to say about how the best and wisest parents (and teachers) comport themselves in the vital social function of educating and acculturating the next generations in the ethos of democracy. “What the best and wisest parent wants for his own child, that must the community want for all of its children. Any other ideal for our schools is narrow and unlovely, and acted upon, it destroys our democracy.”
That was an aspirational statement. Too many parents (and teachers) have always betrayed a prejudicial bias either for their own children or for children who most resembled themselves. The best and wisest are exemplars, not representatives.
By a similar token, too many judges and other legal actors have always betrayed a prejudicial bias for their own ideological commitments and partisan preferences–often masked behind something amorphous and sacrosanct they’ve called The Law.
[“Amorphous? Laws are codified and precise, yes. But when Justice Roberts says in the Obergefell dissent that the court is not a legislative body and has no business altering law, it has become monolithic and ill-defined. "Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be." And this seems disingenuous. The courts' interpretations are inevitably construed as prescriptive, not merely descriptive. Notice Justice Roberts's own should in his disavowal of prescription. And as Justice Kennedy concluded the majority opinion in that case, the petitioners were simply asking "for equal dignity in the eyes of the law. The Constitution grants them that right." If it does, then our jurists should say so. {And if they say so for good and compelling reasons, then it does.}]
But lately it seems to some of us that this tendency has swung hard right, that it is an increasingly narrow and unlovely malformation of legal philosophy, and indeed that it threatens our democracy.
It is from that concern that I would like to join Adam’s brief on behalf of a more democratically humble, circumspect, and falliblilistic sensibility... (continues)
That was an aspirational statement. Too many parents (and teachers) have always betrayed a prejudicial bias either for their own children or for children who most resembled themselves. The best and wisest are exemplars, not representatives.
By a similar token, too many judges and other legal actors have always betrayed a prejudicial bias for their own ideological commitments and partisan preferences–often masked behind something amorphous and sacrosanct they’ve called The Law.
[“Amorphous? Laws are codified and precise, yes. But when Justice Roberts says in the Obergefell dissent that the court is not a legislative body and has no business altering law, it has become monolithic and ill-defined. "Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be." And this seems disingenuous. The courts' interpretations are inevitably construed as prescriptive, not merely descriptive. Notice Justice Roberts's own should in his disavowal of prescription. And as Justice Kennedy concluded the majority opinion in that case, the petitioners were simply asking "for equal dignity in the eyes of the law. The Constitution grants them that right." If it does, then our jurists should say so. {And if they say so for good and compelling reasons, then it does.}]
But lately it seems to some of us that this tendency has swung hard right, that it is an increasingly narrow and unlovely malformation of legal philosophy, and indeed that it threatens our democracy.
It is from that concern that I would like to join Adam’s brief on behalf of a more democratically humble, circumspect, and falliblilistic sensibility... (continues)
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