The Magazine

Is There a Third Way?

Challenge, not deference, to the majority.

Jan 20, 2014, Vol. 19, No. 18 • By JONATHAN V. LAST
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Terms of Engagement is an engaging and important book, and it’s encouraging to see conservatives having a vigorous debate about legal philosophy. Yet it is disconcerting to realize that, ultimately, such conversations may matter little. Because while conservatives debate philosophies, liberals worry only about outcomes. In 1995, the liberal legal theorist Duncan Kennedy argued simply that “law is politics.” Many liberal jurists agree, as does Richard Posner, who may be the closest thing there is to a heterodox legal mind: 

Constitutional cases in the open area [i.e., those cases for which there’s no clear binding Supreme Court precedent directly on-point] are aptly regarded as “political” because the Constitution is about politics and because cases in the open area are not susceptible of confident evaluation on the basis of professional legal norms. They can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms.

When one side of legal theory decides that the law is simply politics by other means, then it hardly matters what the other side believes. In the long run, naked power is a proposition with which no coherent, principled philosophy can compete.

Jonathan V. Last, senior writer at The Weekly Standard, is the author of What to Expect When No One’s Expecting: America’s Coming Demographic Disaster