Much of the body of constitutional law is a mess -- a convoluted mess. Contrary to so-called anti-elitist sentiment out there, it's going to take known heavyweights to clean up that mess. We've got them; why not use them?
Unfortunately, some conservative observers of the Miers nomination have fallen into an anti-elitist trap. They correctly distrust over-intellectualizing -- or at least the snooty, pseudo-intellectualism that emanates from the academic Left. They also have a well-placed aversion toward "over-lawyering," including the tendency to make the simple more complex.
Thus, they instinctively react adversely to the argument that Ms. Miers doesn't appear to have the optimum background to go toe-to-toe against some of the seasoned liberal justices on the Court, no matter how committed she says she is to the judicial philosophy of originalism.
They insist that constitutional law is not (and should not be) nearly as complex as many believe it to be. After all, the Constitution was written in plain English, and reasonably intelligent people can understand its meaning. The problem, they say, is that it has been "over-lawyered" and perverted through generations of "legal scholarship."
Now, don't get me wrong. I'm partially sympathetic to this line of thinking. I do think some constitutional jurisprudence is artificially complex. But more often this is due to justices inventing legal theories and rationales to justify pre-determined results rather than engaging in "over-lawyering."
Regardless of how this mess was created, the best chance we have of correcting it is to employ the best conservative constitutional scholars to undertake the task.
Constitutional jurisprudence requires a strong background in constitutional law. All fantastic idealism aside, no Supreme Court justice, including Scalia or Thomas, will have the luxury of simply ignoring 200-plus years of Supreme Court precedent.
For originalist justices to participate in undoing bad law, they will have to be intimately familiar with that law. That law, unless overruled by the Court, has the force of law and must be reckoned with. You don't just magically erase it. You don't ignore it. You confront it head on. You must address any errors in order to correct them. So you must dig into it, study it, affirm it, distinguish it or rewrite it.
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