F*CK THIS SH*T

The constitutional law professor Michael Seidman likes to tell this story to his first year students:

"There was a man in DC a couple of decades ago who was up on trial for armed robbery. His lawyer put him on the stand, and the prosecutor put him through an excruciating cross-examination. He was really tearing this guy apart, making him contradict himself, just making him look as guilty as hell. Finally, the guy got sick of it.

"And so he stood up, said "Fuck this shit," and left the witness stand.

"Now," says Seidman, "that didn't work out so well for him. But, in a very important way, in that moment he was a free man."

Why am I repeating this story?

I respect the law more than most people. To be honest, I revere it. I believe that the rule of law is vastly important. And, if I sometimes fear that the concepts of "rights" and "duties" are merely noble lies, I believe those noble lies are at least the work of humanity's better angels.

But I also believe that, when it comes to the law, everyone has a limit. You might call it "natural law," or "higher principles." Or you might call it a sort of weighted utilitarianism. Whatever the name, it's the point at which you can no longer follow the law, or its constraints and procedures, and remain a human being.

Here's an example. Most people don't think we should torture people. But most people can only take that so far. What if it's a terrorist who knows the location of the bomb that's going to take out NYC? What if a mad dictator will torture 1000 people if we don't torture this one person? What if our family's lives are on the line?

Another example. You don't think people should steal. But should Jean ValJean really be punished for stealing a loaf of bread, when his sister's family was starving?

In the law, we often use this kind of extreme argument to discredit interpretive rules. And, when presented with such arguments, people inevitably try to distinguish the situation presented from their argument--they weasel out of it by saying "it's different," or "that would never happen."

But most of the time, the real answer is this: Neutral principles only take you so far. Eventually, your principles will run against something they can't deal with, and you just have to make an exception.

Or, more succinctly, "Fuck this shit."

I am not a legal realist by inclination. I don't think judges should use their political preferences when deciding cases, and (unlike the cls crowd) I don't think they have to, most of the time. Easy cases are the rule. And in the hard cases, we should follow the law to the best of our ability to discern it.

But, whether it's "the constitution is not a suicide pact" or Brown v. Board, even the justices of the Supreme Court have limits. We should realize that, and accept it, and maybe even embrace it. It isn't a failing, unless it's a universal human failing. And maybe we wouldn't want them to be any other way.

After all, the law exists, first and foremost, to serve humanity's needs. And, yes, it should be noble, and consistent, and true to its first principles. But it should also be human.