Thursday, November 17, 2005

on the undemocratic elite

There is current an excellent essay by Richard Posner - yes, Judge Posner - in the Harvard Law Review. It is one of the only few free ranging pieces in the review, which essentially means this piece is spotlighted as a "must read." And indeed it is, judging from the content.

Posner argues that the Supreme Court is a political institution. "I shall argue that, viewed realistically, the Supreme Court, at least most of the time, when it is deciding constitutional cases is a political organ..."

To begin, he quotes John Hart Ely. Interestingly, he parallels modern elitism to Hitler's mentality of "knowing" what the people want, which is what judges who espouse living constitutionalism appears to affirm:

The notion that the genuine values of the people can most reliably be discerned by a nondemocratic elite is sometimes referred to in the literature as “the Fuhrer principle,” and indeed it was Adolph Hitler who said that “[m]y pride is that I know no statesman in the world who with greater right than I can say he is the representative of his people.” We know, however, that this is not an attitude limited to rightwing elites.

“The Soviet definition” of democracy, as H.B. Mayo has written, also involves the “ancient error” of assuming that “the wishes of the people can be ascertained more accurately by some mysterious methods of intuition open to an elite rather than by allowing people to discuss and vote and decide freely.” Apparently moderates are not immune either.

Another good quote:

"for reasons that have nothing to do with thinking that precedent has some intrinsic authority, as a clear statutory text has intrinsic authority, or as a precedent of a higher court has intrinsic authority in the decision making of lower courts, which are not free to disregard such precedents. The Court always has a choice whether to follow a precedent. If it follows it because it thinks the precedent correct, then the precedent has no independent force, no “authority,” any more than a law review article that the Court thought correct would have authority. Precedent does have some authority even in the Supreme Court, but it is not epistemic. That is, following precedent is not a warrant that a decision is correct; it is not even evidence of correctness."

I'm too tired to keep reading....until tommorrow,

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