252. Lacking a critical value system

In the Wake of the Plague is Norman Cantors entry in the Be-the-Next-Jared-Diamond! Sweepstakes.   I dont think Professor Diamond needs to worry quite yet, but Cantors book did have this interesting little aside (the book basically consists of a string of little asides, some more interesting than others):

That today we may look back on the English king of the fourteenth century [Edward III, scion of a "devilish breed" of "fighting royal monsters"] as a kind of destructive and merciless force, while to nearly all articulate and literate contemporaries he was a constitutional king and very model of chivalry and aristocratic honor, illuminates a gap between our world and fourteenth-century Europe

Fourteenth century people lacked the moral categories that could transcend traditional political and social roles.  They lacked a critical value system that judged rulers by consequences and not the formal categories in which their behavior was structured.

Ive always thought that the first duty of the historian is not to patronize the past, and talk about the inability of prior folk to think things through as clearly as such models of enlightened humanity as humanities professors has always struck me as a kind of dereliction of duty.  Its a lot easier to say they were inadequate than to face the possibility that they werent.

Anyway, whats Cantors evidence for what "nearly all articulate and literate contemporaries" thought?  The writings collected in their archives, of course.  And might there be reasons other than cognitive incapacity why they might not insert into their official archives criticism of a "royal monster"?  What was it that Russians said during Stalins waning years? – not so much da as duh.

Modern American lawyers live in the intellectual world of Edward III.  Were Scholastics, all of us, still employing the techniques of the 14th century Schoolmen.  (See post 129 and post 14.)  And if a historian writing 650 years in the future were to review only the published opinions of our lower courts, he/she/it could hardly avoid concluding that people of the 21st century lacked the critical value system to judge their Supreme Court by consequences rather than the formal categories in which the Courts legal reasoning was structured.

How else to explain the unquestioning way lower-court judges and practitioners of the 21st century accepted the idea that the Constitution changes meaning from one day to the next, based solely on bloc voting within the intentionally non-representative branch of government?  They had oatmeal for brains back then.  Theres no  other explanation.

I was reminded of this the other day when I underwent the dreary ordeal of re-reading Justice Ginsburgs recent opinion in Cunningham v. California.  (See post 230.)  Thats the opinion in which she explained that the California Supreme Court had misinterpreted the California sentencing statutes, explaining in a footnote (# 16) that the proper interpretation of state statutes is a federal question.

What hadnt occurred to me previously, though, is to add up the votes of the justices who disagreed with Justice Ginsburg regarding the constitutionality of various sentencing statutes.  In Cunningham, three justices – Breyer, Kennedy and Alito – concluded that her opinion was inconsistent with the opinion she joined in Booker, the decision from two years ago that the Federal Guidelines were, on balance, more constitutional than not.

But in Booker itself, four different justices – Scalia, Thomas, Stevens and Souter – concluded in their messily bickering way that the "remedial opinion" Justice Ginsburg joined was inconsistent with the Courts prior precedent – the very precedent on which her Cunningham opinion is ostensibly based.

That means that, of the nine current members of the Supreme Court, seven are now on record saying that Justice Ginsburgs view is incoherent, self-contradictory, an artifact of "Wonderland."  Chief Justice Roberts hasnt favored us with his own opinion, so we have a 7-1 vote.  And the one receives the obedience of every lower-court judge.

Is there any way to say this profession, in its fealty to a Court capable of producing such a result, is less deserving of condescension tinged with ridicule than Englands 14th century scribes?

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