Solum on defining "strict construction" and "judicial activism"

Prof. Solum's Legal Theory Lexicon here attempts to debunk, rather than define, the terms "strict construction" and "judicial activism", which he does by showing that straightforward attempts to define the terms fail for one reason or another.

He concludes that "'strict construction' and 'judicial activism' are simply not very useful as theory terms for academic constitutional lawyers." He fails, however, to explain why their use is so widespread. The obvious answer seems to be that they are useful terms of propaganda. It's much easier to rail against judicial activists and offer strict constructionist judges as an alternative if you don't have to state your objections or proposed alternatives with any clarity or specificity.

Contradictionary: "inequality" vs. "class"

[Update: I've been working on a linguistic analysis of the Second Amendment and DC v. Heller, and plan to post about it. But I've gotten pretty distracted by the definition of "natural born citizen" in the Constitution and the issue of whether John McCain falls under it (the answer is no). I will post about that too. For now, here's a brief note about political discourse. - Uri]

In his book "A No-Nonsense Guide to Class, Caste and Hierarchies," Jeremy Seabrook makes an important point about the discourse of inequality and class. Seabrook points out that "inequality" is a depoliticizing term, compared with terms of class.

"Inequality" is like sentences with passive verbs. It de-agentivizes. If you point out that a society has high levels of inequality, people think it's a problem, but the term doesn't point the way to any particular solution of the problem. "Inequality" fits in nicely with a mystical view of economics in which economic facts are not ultimately attributable to human actions but instead to a "market".

In contrast, "class" makes things much clearer. It suggests that society is divided or partitioned into groups of people with different roles, realities and interests, and suggests some facts that "inequality" suppresses: that the different interests puts the groups at odds with each other and that the different roles give the groups different levels of capacity to change government, society and the economy so that they are more in line with the class's interests.

How we conceptualize inequality and class affects the kinds of solutions we seek. If the problem is inequality, unfortunately caused by the mystical operations of the market, then the solution is accepting it and trying to ameliorate it. If the problem is that an economic class or coalition of classes is waging class war against the rest and winning, then the solution is either for the other classes to fight back, or to reach some sort of class peace agreement.

Inequality talk is pervasive. Even the SEIU's videos that I've watched has leaders speaking about the problem of inequality, and if a union isn't engaging in class talk, then who is? Yet it seems to me that class is a much more accurate concept for describing how society actually works. Let's ditch the inequality talk.

Contradictionary: Law and Economix

Law and Economix. n. The result of combining conventional concepts from two disciplines that depend on wrong assumptions about human nature and whose main purposes are social control rather than knowledge or justice.

Prescriptive note: One should use "economix" rather than "economics". This evokes the "Asterix" series of fantasy cartoons, as well as all those silly legal words ending in "-ix", such as "executrix" and "prosecutrix", not to mention "prolix".

Alligator with alligatrix
[Hat tip to Brian for this joke]

Contradictionary: Legal Fiction

Legal Fiction. n. A proposition known or believed to be false, but presented as true for the purpose of determining the outcome of a legal proceeding or deriving a legal principle of general applicability. Roughly the judicial analogue of what would be called "fraud" if done by private individuals.