Saturday, March 28, 2009

Sanders on Will's Situational Constitutionalism

Chicago attorney Steve Sanders argued yesterday on the American Constitution Society Blog that columnist George Will exhibited his own "situational constitutionalism" in his op-ed earlier this week in the Washington Post.

In that piece, Will romped through recent actions of the political branches--from the tax on AIG bonuses, to TARP, to full representation for D.C. in Congress, to treatment of NAFTA--and concluded that the government is "increasingly anti-constitutional" and reliant upon situational constitutionalism (or politically opportunistic constitutionalism) in justifying its actions.

Sanders responded that Will exhibited his own brand of situational constitutionalism:

What's more curious about Will's attack, though, is that it seems itself to be a bit "situational."  When the issues he cares about are at stake--protecting NAFTA, denying representation to the residents of D.C.--Will calls down wrath against opportunistic politicians whom he says regard the Constitution as merely a "cobweb constraint."  Yet when it comes to attempts by Congress or the states to legislate in other ways that threaten individual rights and constitutional values, Will, like so many of his brethren, seems willing to entrust basic human liberties to the wisdom of these same politicians [and not the judiciary].

Sanders put his finger on why so many of my second-semester Con Law I (structure) students struggle around this time each semester:  In an area with so few definitive "rules"--where everything seems to come down to opportunistic political argument--what are we supposed to learn?  But as Sanders suggests, con law is not mere politics; and we (and our students) might better see this by sorting out situational constitutionalism on both sides of the aisle. 

SDS

http://lawprofessors.typepad.com/conlaw/2009/03/sanders-on-wills-situational-constitutionalism.html

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