Bench Memos

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George Will’s Bit of Fun


Oh what a clever imp George Will is in his Thursday column! He leads on his readers with questions apparently meant to be serious, and then lets us in on the joke in the final sentence: “Or is this the fallacy of the false alternatives?”

Only then did I see that this had been the pattern of the whole column–to present, in the guise of questions for Roberts, a string of ill-constructed alternatives to which no sensible person would agree to be confined in construing the Constitution.

First, citing evidence (pretty good evidence, too) that the framers of the 14th Amendment did not mean to reject all uses of racial categories by state governments, Will asks, “So what help are ‘historical grounds’ when construing the Constitution?” Huh? Does Will really mean to suggest that if history doesn’t dictate our preferred policy outcomes, we should reconsider taking history seriously? I should have gotten the joke right way, but I was too slow.

Next, he contrasts the prevailing view of the “cruel and unusual punishments” clause of the 8th Amendment–that its meaning changes with society’s “evolving standards of decency”–with Justice Scalia’s statement that the “whole purpose” of a Constitution “is to prevent change,” and asks, “Is Scalia wrong?” Has it occurred to Will that both views might be wrong–or more precisely, radically incomplete as accounts of the Constitution and of judges’ role thereunder? Surely it has occurred to him. But at this point I’m still, foolishly, taking Will seriously.

Next Will repeats the standard praise of adherence to precedent, remarks that there are times when precedent should be abandoned, and asks Roberts when that abandonment should occur. Isn’t the answer obvious–and hasn’t Roberts already given his answer–that one overturns precedents when they are wrong? But wait. Will has slipped into his question a mention of overturning of Plessy v. Ferguson and hence of racial segregation. Now I begin to see. He’s having us on. Didn’t he begin the column by suggesting that history shows Plessy to have been right? And doesn’t he know that Brown didn’t formally overrule Plessy anyway? Sure he does. Tee hee.

Next Will sets up a false alternative between devotion to the text of the Constitution and inquiry into the “intent” of its framers, by imagining that there is some difficulty in discerning whether “speech” and “press” include people’s “handwritten notes.” I’ll have to use that stumper in my next exam.

Continuing on the subject of the First Amendment, Will again poses a choice between two alternatives no one would accept as the only ones available–suggesting that in the 1798 debate over the Sedition Act, one side’s view of the meaning of a “free press” represented “originalism” and the other didn’t. Read it yourself if you don’t believe me. It’s a hoot.

I knew I was seeing that patented George Will smirk behind it all when I got to his question whether Roger Taney’s opinion in Dred Scott was “(a) originalism and (b) activism?” Ho ho. Of course it was both, wasn’t it? But it was bad originalism, false originalism, mendacious originalism, as it was exposed to be by the dissents of Justices McLean and Curtis, and most famously by Abraham Lincoln (no mean originalist he). That’s why it was activism!!

Go read the laugh-out-loud final paragraph for yourself. Just remember that not many days ago, George Will had kind words to say on behalf of judicial activism. Who knew he was such a comic? James Lileks, call your office.


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