INSTAPUNDIT ON JUSTICE WHITE: Reynolds champions the idea that “the law should make sense.” No complaint here. But when that principle is used to justify courts striking down laws because they don’t understand the motivation behind the laws–“Only a bigot could like this law!” or “I don’t get it”–doesn’t that essentially allow judges to overturn laws at will? In fact, it creates an incentive to pretend that one’s opponents are unreasonable even if you believe they’re not. Ex.: Congress bans cloning. Justice Glenn Reynolds jettisons the law because he thinks anti-cloning arguments are irrational, lame, dumb, fanatical, insert-term-of-art-here. Or: Justice Pat Buchanan strikes down a free-trade law because he thinks (or says he thinks!) such laws can only be motivated by the rich man’s desire to oppress the poor working folk.

I’m willing to accept that judges have to make many prudential judgments about which justifications for laws make sense and which don’t. But the leeway Reynolds would give judges leads to judicial oligarchy via ad hominem argument. Judges should have more humility, and less confidence in their philosophical acumen or ability to read the minds and hearts of legislators and citizens.

For more neat legal stuff, check out The Corner, especially this perceptive post.