[LMP] 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 23:00:35 -0700 (PDT)

(reply to, essentially, an argument from populism)
... a couple of points for Eugene, who writes regarding the limits of populism: 

"Now in some situations it isn't fine, for instance if a judge is punished for 
sound factual ruling, or for a sound interpretation of relatively determinate 
legal materials."  

In this debate, it does not matter one iota whether populism killed off a 
Missourian account of "law" (look and see -- that's what it says) versus a 
Herculean one (the best way to marshal evidence or arrange premises). In both 
cases, the problem is the same: the "law" does not fit society very well, which 
is why populism had the effect it did.  I also cannot agree with your 
that populistic judgments (discretion) should be regarded the same as what we 
might call "esteemed judgments." Clearly, all judgments (discretion) are not 
equal. Aside from turning epistemology on its head, that would have us revisit 
the mistakes of Athens.

The real issue, as I see it, is how much we want to insulate common-denominator 
sentiment from institutions which perform casuistry (judiciary) as opposed to 
those which perform group-placation (legislatures). The answer to this question 
seems to be pretty clear, theoretically. If we live in a post-modern culture, 
would have difficulty taking any epistemology or high-mindedness as medicine. 
would be hard to get past the Oprah and O'Reily account of things. In fact, 
is exactly how the culture would decide things. If Oprah has more viewers, gays 
can marry. If O'Reily has them, they can't. In such a culture, we might as well 
have Oprah and O'Reily play the role of the Court for us. 

But if we lived in a culture that valued intelligence, we would say that 
populism itself was a scourge. And that whatever the public clamored for 
in-and-of-itself could only be given where it had some appropriate intellectual 

analog. And so, if the anti-gay sentiment in Iowa has it's own version of an 
"esteemed judgment"  -- let us call it the Herculean counter-argument -- then 
would want judges to be thrown out if they were not appropriately cognizant of 
it. What I have said to you is this: if legal culture is such that judgment on 
this issue is a 50/50 thing, it may indeed be rational to sanction judges who 
want to be on the right side of history before Iowans themselves know this. 

Please note that this has now become an argument about public courage and 
as opposed to intelligence and stupidity. And how much virtue one wants in 
American government is something that seems to be trending downward since the 
days the Federalists began losing (but really when Jackson comes around).

I note that about a year ago, Sandy and Miguel (on conlawprof) were touting 
parliamentary systems and complaining that America wasn't democratic enough. I 
wonder if we can't get a shout-out for that Senate and its filibuster rules 
today? People who want more democracy should be careful what they wish for. One 
of the nice things about the Framers is that tea-party and Republican people 
win elections all over the country but not be able to govern. It's an ingenious 
thing, I tell you. 

Regards and thanks.

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org
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> -----Original Message-----
> Volokh, Eugene
> Sent: Thursday, November 04, 2010 5:46 PM
> To: LAWCOURT-L@xxxxxxxxxx
> Subject: Re: Iowa Judicial Elections
>     Well, the voters are the masters, and the judges are 
> the public servants.  Trying to intimidate your servants into 
> doing their jobs the way you think the jobs ought to be done, 
> by threatening to fire them, is usually fine.
>     Now in some situations it isn't fine, for instance if a 
> judge is punished for a sound factual ruling, or for a sound 
> interpretation of relatively determinate legal materials.  
> But even if the Justices' decision was a defensible 
> interpretation of the state constitution, it hardly seems to 
> have been determined by legal sources.  The Justices were 
> exercising their discretion (though quite possibly within the 
> permissible modern bounds of judicial discretion).  The 
> voters didn't like that, and exercised their own discretion 
> to remove the Justices.  I'm not sure that there's much of a 
> neutral perch from which we can criticize the voters' 
> exercise of that power.
>     Eugene


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