Monday, January 24, 2011

Barnett and Kerr - Lincoln and Taney


I am not a lawyer, much less a legal professor, but it is apparent to me that the debates has been going on so long because Kerr and Barnett are arguing about different things. In essence, Barnett is arguing about the constitutionality of the individual mandate; Kerr is arguing about how the SCOTUS will interpret the "settled law" to rule on the mandate.

These are not the same thing and in consequence, it can be said that Barnett is obviously right; Kerr may be right, and Kerr is also badly wrong.

Barnett is obviously right because -- as Prof. Jacobson of Legal Insurrection so cogently put it -- a law, in this case the Commerce Clause, cannot be interpreted in such a way as to lead to an absurd result, which the arguments for the individual mandate clearly do.

Kerr may be right because SCOTUS may screw things up -- they certainly have before. Kerr is badly wrong because his arguments support them screwing up.

After reading voluminous amounts of Kerr's arguments, Barnett's arguments, and their respective rebuttals, I came to the conclusion that, had Barnett and Kerr been arguing 154 years ago over the Dred Scott decision, Kerr would have supported Chief Justice Taney's ruling and Barnett would have opposed it.

I posed this question in the comment over at VC and no one dissented and one commenter who had been following and commenting learnedly on the debate for a long time agreed.

Taney was not some purely racist crank -- he was a distinguished and careful legal scholar, and the court rulings and precedents and "settled law" at the time supported or could well seen to support (and certainly did not contradict), Taney's ruling.

What Taney got wrong is simply that the Constitution cannot be used to deny a man his humanity. But Taney did not focus on what the Law in the Constitution said -- he focused only on what legal scholars had previously said about the Law.

Abraham Lincoln, of course, was not so blind and he destroyed that line of thinking, famously saying: 
"As a nation, we began by declaring that 'all men are created equal.' We now practically read it, 'All men are created equal, except Negroes.' When the Know-Nothings get control, it will read, 'All men are created equal except Negroes, and foreigners, and Catholics.' When it comes to this I should prefer emigrating to some other country where they make no pretense of loving liberty -- to Russia, for instance, where despotism can be taken pure, without the base alloy of hypocrisy."
Kerr is making the same mistake Taney made; he is Taney to Barnett's Lincoln.

Now I don't think Orin Kerr is a bad guy. He seems nice; he is an intelligent man and a diligent, careful legal scholar and I have no doubt he has done much good.

But the same is true of Roger B. Taney.


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