Big Hat Tip to The Volokh Conspiracy
Oh, how I wish I were as elegant as Jonathan Rauch, but he makes a similar argument to a previous post on the Schiavo case. I had always argued that what ever the outcome was, at least the Courts had followed the law. No matter what you believe the outcome should have been, the fact that the due process rights were carried out seems beyond question.
I agree with Rauch when he says that Americans cherish the predictablity and stability of law above all else. No matter what happens, Americans inevitably fall back on teh concept of whether something is legal. Americans intuitively understand that questions of morality are subjective, framed by ones own belief system, religioin or upbringing, but no one doubts the law. We may not agree with the law, but at least the law provides a structure to our way of life.
The law is malleable, but not squishy. Like folding iron, it takes work when the iron is cold, it takes repeated hammering and effort. But if the iron is hot, when passions are highest or agreement is nearly unanimous, it is possible to fold the iron easily and the iron retains its heat for a while in order to correct mistakes.
The GOP dropped the ball on this one, badly. I am not still not convinced that Terri's Law was meant to score more political points with their base rather than the result of some considered desire to "protect life." Nevertheless, many conservatives, myself included, recognized that this case turned the concept of law and order (in a structural sense) on its head. The GOP wanted to achieve some end, but rather than accepting that the rules as they now stand did not permit them their victory, they fell back onto Democratic patterns, change the law.
There is a saying that lawyers have, "bad facts makes bad law." In this case, the GOP's efforts based on bad facts made for a bad law, and worse, a bad precedent for the party. The GOP can get back to an even keel by realizing that most Americans believe in the wisdom on judges, believe that on the whole, the courts do a good job--one that most of us could not do, and more importantly, Americans believe in the law.
Social Studies (04/08/2005)
