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Voter fraud and fraud on the voters


Politically speaking, American law schools do two things: they defend the social status quo, and they provide a platform for constant vicious reactionary attacks on that same status quo. The basic battle is always between a post-New Deal technocratic liberalism that resists dismantling what’s left of the welfare state in this country, and on a good day argues for maybe expanding it just a little, and people who want to erase the New Deal at a minimum, and who deep down believe the wrong side won the Civil War, the French Revolution, and maybe the Council of Nicaea.

Note that the former group, which has nothing to do with leftism in even the loosest sense, is what your basic anti-PC warrior describes as “the Left” when he’s complaining about wokeness and transgender bathrooms and the 1619 series.

I was reminded about this when reading up on the latest Republican judicial attacks on the right to vote. Those attacks would be an intellectual embarrassment if federal judges were capable of that emotion, which naturally they are not (yay life tenure!). Here’s a passage from Duncan Kennedy’s great 40-year-old essay, still as relevant today as when it was written, on how law school systematically crushes any impulses on the part of law students to critique the legal system from a left perspective:

The intellectual core of the ideology [of the American law school] is the distinction between law and policy. Teachers convince students that legal reasoning exists, and is different from policy analysis, by bullying them into accepting as valid in particular cases arguments about legal correctness that are circular, question-begging, incoherent, or so vague as to be meaningless. Sometimes these are just arguments from authority, with the validity of the authoritative premise put outside discussion by professorial fiat. Sometimes they are policy arguments (e. g., security of transaction, business certainty) that are treated in a particular situation as though they were rules that everyone accepts, but that will be ignored in the next case when they would suggest that the decision was wrong. Sometimes they are exercises in doctrinal logic that wouldn’t stand up for a minute in a discussion between equals (e. g., the small print in a form contract represents the “will of the parties”).

A perfect illustration of this is the 5th Circuit’s ruling that literally any burden on the right to vote by mail in Texas is OK as long as the putative reason for placing that burden on that right is preventing “voter fraud.” The logic of that decision is that the state’s interest in the integrity of elections is so overwhelming that it always “outbalances” the interest voters have in seeing their legally cast votes actually counted.

This is of course farcical on its face, because putting the integrity of elections on one side of the scales of justice, and the interest voters have in seeing their legally cast votes actually count on the other, is about as sensible as arguing that a certain government action is justified by the need to protect public health, even though that action also happens to produce a lot of cancer cases.

The only actual voter fraud going on in Texas is the fraud on the voters being carried out by the state’s Republican governor and legislature, who are working overtime to make sure people can’t vote, so that they can stay in office.

The point of law school is to make you stupid enough not to see that, while at the same time priding yourself on how smart it has made you. The ideal representative of this transformative process is a federal judge, and the Platonic ideal is whatever Federalist Society hack is at the top of Leonard Leo’s not so secret plan to declare the 20th century unconstitutional.

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