Feb

18

Last Friday, February 15th, should be at least one of the minor memorial days for the Law is Fairness doctrine. Ronald Dworkin's obituary made the Telegraph, and John Burt's book on Lincoln was reviewed by the WSJ. For those of you who are not besotted by the Constitution, this may not mean anything; but for us few remaining Neanderthals it is another reminder of how how pernicious modern legal scholarship has become. Dworkin believed with all his heart that the U.S. Constitution existed to "benefit society not just by providing predictability and procedural fairness, or in some instrumental way, but by securing a kind of equality among citizens that make their community more genuine and improves its moral justification for exercising the political power it does". Professor Burt remains convinced that freedom is really just a "code word" for "racism" (whatever that means) and that markets function only as a form of "Darwinist brutality."

The belief that the Constitutions of our Union were, as written, the "law of the land" is probably the only religion that Abraham Lincoln had. He used the vocabulary that Washington and Grant did and spoke and wrote regularly about Almighty Providence; but he did not have the soldier's acceptance of fate. What he did believe was that the Constitutions were sacred documents because they represented, in tangible form, the will of the People. However, for those of us who remain anarchist enough to think that the only foundation of "the law" in this country is the United States Constitution and the Constitutions of the various states, as written. The resonance of the words in Gettysburg Address is real because it is Lincoln's own catechism as an American: "that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth." "Fairness" - in the communitarian sense of let's all share the rich guys' stuff so dear to academics and intellectuals everywhere - was not even mentioned.


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