The Electric Commentary

Thursday, June 23, 2005

Update 2

In the comments, Paul Brewer points out that Brian Leiter has (apparently, sort of, kind of,) retracted his threat to out the anonymous Juan Non-Volokh:

Point taken here. I would like to find out who he is, but perhaps I won't publicize it.

One of Leiter's criticism's of JNV was that he ignored the main point of the post on which he was commenting. Leiter repeatedly accused JNV of a lack of reading comprehension. He then showed his own superior reading comprehension skills by quoting Steve Hamori, in this post, but attributing the quote to JNV:

Putting aside the misreadings designed to make the target look ridiculous, how about this line from Mr. Non-Volokh's second posting: "I doubt Leiter knows anything about the history of fascism. Intellectually, the progressive left has a lot more in common with it than the 'libertarian right' (the real liberals)." Was this claim about my ignorance, and allying me with fascism, intended as a compliment?

(Lest my reading comprehension skills be impugned, Leiter does not directly attribute this line to JNV via clever use of language when he writes, "this line from Mr. Non-Volokh's second posting." However, he is clearly attempting to associate JNV with this insult for the purposes of making his point, and therefore it is fair to treat his statement in the way in which I treat it.)

Then, in a craven attempt to cover this faux pas before it was noticed, he allowed a quote from an e-mailer to do his work for him:

His comments were just as craven as his anonymity -- allowing quotes from other to do the hatchet work and then feigning surprise when it's pointed out that he's attacked you.

Leiter also wrote the following:

Until he comes out of hiding, however, I'm done commenting on Mr. Non-Volokh's displays.

And proceeded to comment at length. This particular pissing match did net a few interesting posts by Eugene Volokh here and here.

Finally, one of the issues that started this whole thing was a passing comment by Leiter on originalism:

Originalism (whether about intentions or meanings) is now the dominant, almost entirely unquestioned touchstone of constitutional argument and interpretation in the United States. This is odd since there is no plausible, theoretical justification for it that speaks to the kinds of issues I noted in passing and that are taken up by Professor Marmor in the piece linked to, above. Although there analagous [sic] questions that could be raised about constitutionalism itself, the issue of originalism as a theory of interpretation is severable.

JNV links to Michael Rappaport's response. Here's a taste:

This supermajoritarian defense of the Constitution is reinforced by the fact that original meaning interpretation guides and constrains judges. Under the loose interpretive approach favored by Marmor and most liberal academics, there is little to stop the Supreme Court Justices from imposing their own views on the nation. Since this amounts to constitutional amendment by a majority of 9 unelected judges, as opposed to constitutional amendment by a supermajority of elected officials, this process of judicial amendment is far worse than following the original meaning.

And that (hopefully) ends that.


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