Brian Leiter "is a professor of law and director of the Center for Law, Philosophy, and Human Values at the University of Chicago." That's a relief. Why, he could be anybody. The New York Times asked him what he thinks about rosy-cheeked homunculus John Yoo's tenure at Berkley. I am not really very concerned with John Yoo's tenure at Berkley, but I am interested in the way the professional etiquette of "academic freedom" is enshrined as quasi-constitutional doctrine and a universal right of man some men, who happen to be professors. Leiter:
Many of those commenting on the Yoo case have, I suspect, an unrealistic picture of constitutional law, as though there were clearly correct and incorrect positions on these issues. Alas, there is not a lot of “law” in American constitutional law, so that we quickly go from “that’s a bad legal argument” to “that’s a morally odious position.” But having what many would deem morally odious views is well within the protection afforded by academic freedom.Yes, it's true. The Constitution: totally complicated!
For instance, if you were to ask, what is the Constitutional "law" regarding treaties, I could only point you in the direction of the wholly ambiguous Article VI:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.Very ambiguous.
And surely there is no law or treaty to which the United States is party that defines torture both broadly and specifically defines torture as
...any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.That would be insane!
Anyway. Leiter. A professor of law. Well, opinions differ, and such. He is not certain whether it is legally and constitutionally permissible to torture prisoners, but he is certain that universities cannot fire professors because of the Constitutional guarantee of Academic Freedom. Well, there are no correct or incorrect answers, only stupid questions!
As is often the case, the full absurdity is best appreciated through the time-tested method of accurate paraphrasis. While there are no firm legal precepts regarding the torture of human beings, university tenure is inviolable. What a dick!
17 comments:
that dude created his own ranking of law schools bc the industry standard rankings (us news) did not award his former employer a ranking to his tastes. he also waged a kind of bizarre blogosphere war against a god damn law school student and applicant message board that was filled with vulgar/boorish/sophomoric language.
in other words, he has a bright future as a pundit.
PS - can we get a link to the nytimes article?
In mild defense of Leiter - mild because this is precisely the type of willful blindness that causes me to part ways with 99% of the "legal community," and defense because leiter often says smart things - I offer the following argument for lucifer, in the form of a question: what is the "supreme law of the land" if the US entered into a treaty that conflicted with the Constitution?
John Yoo embraced the UN torture convention... just with a little extra emphasis on "intentionally."
p.s. would it be gauche to link to myself a second time in one day?
Why is that a question, la Rana? The treaty would then trump the Constitution, obviously.
What does any of that have to do with Field Marshall Yoo? I see no connection.
poorly executed sarcasm, or teh dumb?
The answer is obvious: rock goes right through paper. And Yoo actually spells intentionally with a question mark at the end.
teh dumb
not just here, but everywhere. outside of religion, there is nothing as ill-considered as the common dude's opinion on "the law"
What teh is linking Matthew Iglesias to one's website. That's teh.
Meanwhile, where's the controversy. Article VI says " treaties prevail, "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
Still haven't heard teh connection to Yoo...
Leiter is a "legal realist"* who says law is just what officials (i.e judges) say it is. You could try quoting Constitutional text at an originalist and then they'd have to come up with an excuse, but all that stuff is irrelevant to a realist.
*Or maybe the term is "pragmatist". Whatever.
Nothing much to add except Woo is at "Berkeley", not "Berkley"...graduated there in '93 with a BA in History, so pardon the intrusion in pointing that out.
Constitution? huh?
Sam, buddy. Berkley is irony, sarcasm, spoofery.
This is a major crisis. Our liberals are so damaged, they get everything wrong. Absolutely everything.
And, notwithstanding their hipster poses, they need remedial help in freshman lit-crit skills/reading comprehension.
Re John Yoo's tenure at Berkeley, IOZ, you may want to take a gander at what his boss wrote -- assuming you have not already.
pardon the intrusion in pointing that out.
Who is Woo? This isn't a guy who built the railroads here.
Michael Dawson, I'll climb down off my horse just this one time:
The Supremacy Clause, as that graph is known, says that treaties, along with the US Consitution and laws passed in pursuance thereof, prevail over State Constitutions and State laws.
The reason my question is/was relevant to Yoo, is that while the question does not have a good answer, most people believe the Constitution prevails (otherwise this would permit amendment by treaty), and the presumption that the Constitution prevails over all other law is the crutch upon which Yoo has rested his entire legal framework. His legal analysis is hilariously inept and easily disproven, imho, but that question is the very beginning of the whole debacle.
It says "the supreme law of the land" AND tells states that includes them.
To the extent there's any ambiguity, that's just reason #99 for calling a new Constitutional Convention.
John Yoo is a war criminal, plain and simple.
well thats settled.
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