4 ms·

In the political arena of recent years, lawyers and judges "being made a laughing stock" has not turned out to the be the deterrant it was once thought to be.

• rayiner 2y ago
  It was never a deterrent. There was a whole generation of old white guys who wrote phrases like "emanations from penumbras" with a straight face--waving their hands to establish what their legal analysis could not--who are held in high esteem today.
  • QuantumGood 2y ago
    The Overton Window is always shifting, but it was "more of" a deterrent in the past.
    • rayiner 2y ago
      The law is far more rigorous today than it was 50 years ago. The dumbest legal theory in recent memory, that the vice president can refuse to certify the election, is more rooted in in the constitutional text—the 12th amendment does assign the vice president at least a ceremonial role in the process—then a bunch of established mid-20th century precedent. Which is not to suggest that the VP certification theory isn’t terrible—it is. But at least it pretends to be a legal argument, based on constitutional text, rather than philosophical or sociological braying.
  • QuantumGood 2y ago
    Douglas' "emanations" argument was that the right to privacy can be inferred from other enumerated rights (First, Third, Fourth, Fifth, and Ninth Amendments), i.e. a constitutional interpretation that unenumerated rights exists. Arguments against implied but unenumerated rights in the constitution can easily be made, but summarizing this as hand wavy leaves out a lot of detail.