A good article on the “Rule of Law”, from the mid 1990’s, and worth the read considering SCOTUS’ recent PPACA ruling.
[I do not totally agree with him. He ignores all of the material written at the time which explain and clarify so much of the constitution. He completely ignores both The Federalist Papers and The Anti-Federalist Papers, especially as to the interpretation of clear language. His argument on paintings and photos is off as they had drawings and renderings in the papers of the times. Ya, the guy makes some good points, but as I learned from my torts professor, Kingsfield in using The Socratic Method of teaching, was teaching critical thinking, and thus much of what we do is limited by the ‘absurdity principle’. Most of the examples he uses, because of the absurd results in reality, DO have specific legal results, easily reached.
My personal opinion is that one should read this from the position that it is more off-the-cuff than it is a well researched and thoughtful legal treatise. Its purpose is to start one to thinking, not to introduce or prove a legal proposition. The use of Contract Law to prove and disprove his position is ok, but speaking as an expert, his cherry-picking leaves a lot to be desired. Just as an example, his Iowa dance school case is clearly fraud, as the sale of more than one life time contract, as well as over 4,000 hours of dance time and the 2X Ginger Rogers, even allowing for sales hyperbole, is a practical absurdity, and thus, only one legitimate conclusion may be reached. Another is how the rebuttable legal proposition of ‘last clear chance’, where liability may be mitigated because the victim had a last clear chance to avoid the injury, applies. I personally have been at a hearing where opposing counsel advanced that if my client had not gone to work that day, he would not have been hit by his client who was speeding and running a red light. The absurdity principle eliminates last clear chance, but the advancement of it by opposing counsel is what the professor is advancing as acceptable.
Good article, worth the read, but don’t take it as absolute. The First Amendment means what it says, and a clear reading is not as grey as he makes it out to be.
Thanks to Butch for finding and sharing.]