Orginalism is bullshit, but am I the only one who finds Pragmatism just as troubling..

[white_wolf]

So today in class we discussed Legal Pragmatism, a judicial philosophy best embodied by 7th circuit judge Richard Posner. As we discussed it in class, I noticed a highly anti-democratic, elitist worldview in this theory. According to Posner, legal Pragmatists, favor an "elite democracy" over participatory democracy. I'm paraphrasing from a quote my professor read from one of Posner's books: (Elite democracy is a method by which self-interested elites compete for the votes of ignorant, apathetic masses.) Pragmatists view the Constitution as antiquated and view legal precedent as a hindrance on the judge.

Ideology is also very important in the view of the legal Pragmatists. They are more than willing to give themselves a large amount of discretionary power since they believe that being members of the elite, they know what is best for the people better than the people themselves. They also view rights as subject to change based, not only upon security issues, but upon the value judgements of the particular judge.

I'm just wondering is anyone else worried about this view gaining power on the Supreme Court? It seems like a very elitist anti-democratic view. I much prefer Legal Realism.

[MadHound]

1. Too late by half

First of all, if you look at our original Constitutional setup, it was an elite democracy. Only white males, property owning white males at that, could vote. It took several decades for universal male suffrage to be the law of the land, and even longer for universal human suffrage.

Further, this is all based on Platonic thought and philosophy, a strain that has ingrained itself into Western society and culture for centuries and eons. Have you read Plato's Republic? If not, I suggest that you do in order to see origin of Legal Pragmatism.

I'm certain that the Supreme Court is, and has been steeped in varying degrees of the philosophy since the beginning of our country.

[bemildred]

3. +1. nt

[RaleighNCDUer]

2. Democracy for the few is not democracy.

Legal precedent is INTENDED to be a hindrance on a judge. If you are going to overturn precedent, you have to have a damned good reason for it, and you have to lay out that reasoning in your opinion. If the reasoning is sound, and the opinion well written, it won't be overturned by a higher court.

Precedent is what makes the difference between laws of the state, and laws of the individual.

[Scruffy1]

4. I think Prosser is just being honest.

The courts of the USA have for the most part always sided with the elites and just used precedent and originalism to prop up their bias towards the elites and their regard for property. Originalism is primarily used when logical argument fails. It's the logical equivalent of "because I said so" only using the big other.
From the Dred Scott, the Sedition Act, Sacco-Vanzetti, and Citizens United one can draw a straight line to wealth and power. Face it our legal system is mainly about protecting the status quo and the ruling class.
"A judge is a lawyer with a politician for a friend."-Ambrose Bierce.

[Tierra_y_Libertad]

5. An old French Socialist joke covered "justice".

A tourist is walking through the alleys of Paris. He sees a French cop arresting an old, raggedly dressed, man for rifling the restaurant garbage looking for food.

Tourist: "Why are you arresting that poor man for just trying to find food to eat? It's unjust!"

Cop: "Monsieur, in France we have Egalite. If a rich man were stealing garbage to eat, I would arrest him too!"

[saras]

6. Shortest lawyer joke ever, not anti-lawyer.

Wanna hear a one-word lawyer joke?

Justice.

[Romulox]

7. Richard Posner is the father of the "Law and Economics" movement, which posits

that all legal rules should be based on a model of laissez-faire capitalism.

I don't have a clue about his new "Legal Pragmatism" moniker, but I suspect, when the veneer is stripped, you'll find that radical rightwing economics inform his every theory.

[white_wolf]

8. Yeah my professor mentioned he used to teach economics at the University of Chicago before he

became a judge, which did send off warning bells. I swear the water at that place must be tainted or something.

[Romulox]

9. You haven't LIVED until you've heard someone argue: "It doesn't matter who's right or wrong,

it's MORE EFFICIENT to let the corporation pollute, and then pay off the nearby homeowners..."

A more radical legal theory I've never heard. What authority has placed "market efficiency" as the ultimate arbiter of legal rights? Don't ask ol' Posner--he can't explain it. I guess it's just more "pragmatic" to let the wealthy do whatever they wish.

[white_wolf]

12. I'm really beginning to think the term efficiency is economics code for "how can we screw the

people this time?"

[Odin2005]

14. "efficiency" = "how can we justify our psychopathy"

[starroute]

10. This is why there are calls for "real democracy"

The nasty secret of democracy is that it has always had an elitist bias. The basic set-up is one in which we elect our rulers -- and then they lord it over us.

As long as elections had some meaning, they acted as a check on raw abuses of power. But at any point where the elite finds ways to essentially buy elections, that check breaks down. Which is where we are now.

This is why the Spanish protesters have been calling for "real democracy now." We need some combination of transparency and genuine grassroots power over the operations of government to counter elite control.

It also might not hurt to lower the salaries of government officials and judges to the point where the jobs won't attract the kind of people who complain that you can't live on $174,000 a year.

[MemeSmith]

11. The role of Murdoch should illustrate

The role of Murdoch in political affairs should amply illustrate that democracy's function in the eyes of the elite is to placate the masses with an illusion of consultation.

The elite has no intention of permitting the masses to make an informed choice. The belief that they have chosen their chains is the lock that secures their chains in place.

Democracy, as we see it today, is a sham.

The Murdoch project is a key element in maintaining that sham.

Only strict and carefully crafted regulation of the media, prohibiting conglomerate ownership of plural broadcasting or publishing outlets, can protect the variety that is necessary for effective critical discourse. Unless and until we get that, none of us really has a democracy.

[Odin2005]

13. The Constitution only means what the PTB says it means.

As long as the Capitalist Class rules the world constitutions are irrelevant, it is the true economic power relations that matter.