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Academic

: Essentially Contested America

Is the Law for Judges or for the People?

By Robert Justin Lipkin

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Something is extremely problematic in the American judiciary. Read almost any case, for example, the recent Second Amendment case, DC v. Heller. Both the Court's opinion and the principal

dissent are replete with American history, English history, lexicography, and so forth. What level of education is required to make sense of these opinions? Clearly, it's unlikely that even an intelligent college graduate could read this text and garner even a superficial grasp of it meaning and argument. I doubt many would take issue with this contention. What would prove controversial, in all likelihood, is whether it matters. In a democratic republic, however, it's bound to matter. When consent, accountability, and sovereignty are fundamental elements in constitutional self-government, courts must speak to the people. The more arcane the language of their opinions become, the more the citizenry is shut out. Where the citizens are shut out these fundamental aspects of self-government are lost. The polity is no longer a government of the people and by the people, but rather becomes a government of and by elites. Where elites rule, government for the people inevitably is lost.

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Full post as published by Essentially Contested America on July 02, 2008 (boomark / email).