[CP] Iowa, Gay Marriage and the Rule of Law
- From: Sean Wilson <whoooo26505@xxxxxxxxx>
- To: wittrsamr@xxxxxxxxxxxxx, metalaw@xxxxxxxxxxxxx, cv@xxxxxxxxxxxxx
- Date: Thu, 4 Nov 2010 22:50:33 -0700 (PDT)
(Discussion about whether the Iowa judges who were recalled by voters because
they ruled that the Iowa constitution allowed for gay marriage had "followed
law" or "voted their policy preference." Three installments coming. The first
argues it is a false question. The second that language bewitches the answer.
The third is about American government and populism).
----- Forwarded Message ----
From: Sean Wilson <whoooo26505@xxxxxxxxx>
To: LAWCOURT-L@xxxxxxxxxx
Sent: Thu, November 4, 2010 4:55:41 PM
Subject: Re: Iowa Gay Marriage Decision and the Rule of Law
... love to add my 2 cents.
For those in political science and elsewhere who are predisposed to framing
the issues this way, we might also ask:
When one engages in casuistry, what does it mean to "implement your own policy
view" (as opposed to not)? And how does this manifest itself? For example, does
it depend upon whether all of the premises in the opinion are true? If a poor
decision could be re-argued into a better one, does that count? Is it
predicated
upon the judge believing he or she has no choice -- that the hand is forced, so
to speak? Or is it a neurological theory -- does an MRI of the judge's brain
give the real answer? Moreover, what if in each case the judge can be said to
follow a different vision of law -- is our question at the outset favoring one
of these visions?
Might we need good examples of these ideas before we carry them forth into
application? Might it be a better to ask this question:
In the minds of the political scientists, which decision has better integrity,
and why -- and does judicial independence help or hurt this result? In other
words, which system lends itself to Dworkinian judging? Finally, what if we
find that culture is such that these answers are contingent in important ways
on
how we behave at certain times in history. What if the answer is something like
this: the decisions were integrous from the standpoint of what would eventually
become hegemonic and learned, but not so for a populistic, agrarian framework,
which favored another sort of social arrangement.
What do we do then about all this rule-of-law talk? Or about the cheat-the-law
talk? Might we really need to give up that question and work on trying to make
anyone who judges anything into a better thinker?
Regards and thanks.
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org
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SSRN papers: http://ssrn.com/author=596860
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----- Original Message ----
From: James L. Gibson <jgibson@xxxxxxxxx>
To: LAWCOURT-L@xxxxxxxxxx
Sent: Thu, November 4, 2010 4:55:20 PM
Subject: Iowa Gay Marriage Decision and the Rule of Law
Dear All,
Don't want to stir up a hornet's nest, but I sure would welcome replies
from our experts on two sides of the Iowa gay marriage Supreme Court decision.
I
would welcome a defense of the decision as necessitated by the rule of law
(independence frees judges to follow the rule of law). I would also welcome a
critique of the decision as a simple policy decision by the Court (independence
frees judges to implement their own policy views). I don't know enough about
Iowa law and the Iowa constitution to know whether the judges were in any
reasonable sense required to follow the rule of law and find in favor of gay
marriage or whether instead the law was insufficient to require a decision, one
way or the other, and therefore that the judges had no choice but to vote their
policy preferences. I would love to see a reasoned rule of law defence and a
reasoned rule of law critique of the decision.
It seems to me that how one feels about the Iowa vote depends greatly
on
what one believes the judges were doing.
Jim
P.S. In my view, it would be nice to see these positions developed without
regard to whether one favors or opposes gay marriage. Perhaps that's
impossible,
however.
Dr. James L. Gibson
Sidney W. Souers Professor of Government
Washington University in St. Louis
13 Hortense Place
Saint Louis, MO 63108
Tel: 314 367 1931 or 314 935 5897
Fax: 314 367 1741
Cell: 314 488 0108
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