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« More On Democracy | Main | 20-20 Hindsight »

Process Versus Product

The recent post on the electoral college raised anew an issue that I often find frustrating in debating policy, particularly when it comes to court decisions, and particularly Supreme Court decisions.

I often find that people have difficulty making a distinction between their position, and the metadiscussion of how they arrive at it. These are two separate discussions, but they continually get conflated in common discourse. That post was not about the merits of the electoral college per se, but rather about the merits of a couple of particular arguments that were made against it.

It is quite possible to believe that a position is correct, while a particular argument for it is weak, or fallacious. In fact, it's important to be able to articulate and make a good argument (or at least the best one possible) for either side of a case--this is commonly taught (or so I am told) in law school.

While I do happen to think that the current electoral college system is satisfactory (though perhaps increasing the resolution on it so that electors are elected by congressional district, rather than at a state level, might improve it somewhat), I was disagreeing in that post with the quality of the arguments presented, not the position itself.

It is quite possible to agree with (or at least be in favor of) the outcome of, for example, a decision of the Supreme Court, while disagreeing with the reasoning by which it was reached. The case that jumps most immediately to mind here is Roe v. Wade, in which they ruled abortion a right by flawed reasoning and a reading into the Constitution of rights that many believe are not there. Even Justice Ginsberg, I believe, has stated that while she believes herself in a woman's right to choose to abort her child, she's troubled by that particular decision on Constitutional grounds.

There are many decisions of the Supreme Court that I view as "wrong" in the sense that they result in a society in which it's less desirable for me to live, but I agree with them in the sense that they are indeed in concert with the Constitution, which is the criterion on which they're supposed to be basing their decisions. I don't understand why more people aren't capable of making this distinction.

And it's not just a complaint about topics and modes of discussion on a blog--it has real-world political consequences.

By my view, when the Supremes make a decision that I dislike, but is constitutionally correct, the appropriate response is not to be angry at them, and to start an impeachment drive, or to lobby my senators to put someone on the Court who will make decisions more compatible with my desires (i.e., to rig the process to give me the result I want), but rather, to amend the document whence the decision came.

Unfortunately, it's easier to play politics and bork judges than it is to amend the founding document, so that's what politicians do, and because the public rarely makes the distinction, they get away with it.

Posted by Rand Simberg at August 30, 2002 04:47 PM
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Well said.

Posted by Martin Devon at August 30, 2002 08:42 PM

Right, Roe v. Wade is a decision I absolutely hate, even though the outcome is what I want to see politically. I am sick up and fed with judges who substitute their personal feelings for constitutional arguments.

Posted by Ken Summers at August 31, 2002 01:38 PM

Most of the time I do not like a decision even when based on Constitutional grounds, and as the Court often points out, the law can be fixed to be in accord with the Constitution. I do not think I would like living under a Constitution which, as in some countries, has nearly two hundred amendments - when it gets that bad, it is time to start over.

Posted by John Anderson at September 2, 2002 03:09 AM

Thank the FF's that the document is so hard to amend. I certainly wouldn't want the Federal Government be as easily mucked with as the California state government, with its Frankenstein constition that it's all too easy to stitch some new horror into.

Posted by Dave Trowbridge at September 2, 2002 05:54 PM

I think it's sort of related to the way that people think something might be true -- they form a hypothesis.... and immidiately decide it's the truth.

Some little conspiracy theory has a shred of fact involved, and suddenly people people the bizzare consipracy *must* be true, and treat it, also, as fact.

Posted by ceil at September 5, 2002 03:37 PM

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