Saturday, February 11, 2006

Eskridge, terrorists, wiretaps, hypocrisy

I read a snarky post from The Right Coast and it mentioned something of Eskridge called "dynamic statutory interpretation," and yes, it's just what you're afraid of. (See his article of the same name: 135 U. Pa. L. Rev. 1479.) He agitates for freeing statutory interpretation from the originalist prison so it can join its friends constitutional interpretation and the common law, who have been free range chickens for some time now.

This definitely solidifies the sad truth of Posner's comment a while back in the NY Times: that if we judge the law from society's needs--meaning that the government has wide latitude to do whatever it wants--then the NSA wiretaps are probably a pretty easy slamdunk. If you apply the soft-love interpretive theories of Eskridgeism and Posnerism to your own pets, but keep my pet trussed up in strict construction because it might eat your daisies, you are, in a word, a hypocrite.

There are of course worse things than being a hypocrite. One thing worse is to simultaneously (a) live under a government unfettered by rule of law because of loose interpretive theories and then (b) not-live under said government because you've been killed by terrorists. So if you are going to have a double standard because consistency is too costly, do try to apply the right standard to the right problem instead of vice versa, hey no?


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