Here’s the meat of an email about Miers that I sent to Lex:
So many of these lawprof types just don’t get it. It’s a game to them. Anyway, the notion that you have to be a scholar to understand the plain language of the Constitution is wacko. I think it’s more like only a scholar could come up with the sophistries necessary to evade the clear meaning of the Constitution. I think it might be a good idea to appoint some non-lawyers to the SC for this reason, though it will never happen.
Lex told me that I should blog these comments. I think he said that because he agrees with me but, being a fancy lawyer himself, doesn’t want to take the heat for it. To be fair to him, he did share these cautionary words:
Well, there is a body of precedent that has developed even for the “plain language”, and the Constitution is a legal document and it is proper for it to be interpreted by lawyers in lawyerly fashion.
Good point, but. . . What about bad precedents? Roe v. Wade has been stinking up the joint for quite a while, but you can’t get confirmed to the Supreme Court if you say that it should be overturned. Would a court of non-lawers have decided the case in the way it was decided? Would they be as resistant to overturning it? Who knows. Maybe they wouldn’t have taken the case. Or maybe they would have been just as political as the SC actually was (and is), but not being lawyers would not have had the chutzpa to invent a Constitutional rationale for their political biases. In other cases, like Kelo, I would have preferred the opinions of non-lawyers over lawyers any day. I don’t see how non-lawyers could have decided it worse, and they might have been more likely to stick to common sense (i.e., the property seizures were not for public use) and avoid the complex arguments that interest legal academics but that are going to keep the issue in litigation for years.
The Supreme Court is a nice idea, but it’s become a concentrated little House of Lords with few constraints on its power. The non-lawyer idea isn’t going to fly but other alternatives might. Term limits, anyone?