From my buddy, Clint Taylor:
Although I may not share Hugh’s degree of enthusiasm for the Miers
nomination, I think he’s dead on about judging not being rocket science.
I might draw your attention to a Mr. Hamilton writing in Federalist 83.
Hamilton is disputing a misinterpretation of constitutional guarantees of a
jury trial–that because the constitution only mentions them in regard to
criminal trials, jury trials are therefore to be prohibited from civil
trials: “With regard to civil causes, subtleties almost too contemptible
for refutation have been employed to countenance the surmise that a thing
which is only NOT PROVIDED FOR, is entirely ABOLISHED.” Hamilton is
thoroughly contemptuous of these “subtleties” of interpretation, and notes
that “The rules of legal interpretation are rules of COMMONSENSE, adopted
by the courts in the construction of the laws.”
I don’t expect that will change any minds on Miers, but I think it’s a
valuable explication of the importance of common sense in writing
Constitutional law, as opposed to some sort of esoteric, gnostic
penumbra-perceiving arcana imparted only to The Chosen Ones at the
top-flight law schools.
Nicely put, and I thank Clint for sending that along, even though it argues Hugh Hewitt’s point. To suggest that justices of the high court ought to be familiar with Hamilton, I can’t resist noting however, is to suggest that they possess not merely common sense but at least rudimentary historical knowledge, which argues my point.