Counterproductive: A good idea badly argued.

In my work, I sometimes must give a student a failing grade for a badly argued case, even as that student is arguing for a good idea. I did not expect to see that kind of thing under the imprint of the Ayn Rand Center for Individual Rights, but here it is, in a blog entry by Thomas A. Bowden from ARC Media:

Judicial liberals don’t dispute that a judge must bow to the “social will”—they simply divine it differently. As one liberal Justice declared, the Constitution “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

The first sentence of this paragraph is true. The second is false. The justice being quoted was Chief Justice Earl Warren, a Republican who almost single-handedly revived the practice of constitutional review by the Supreme Court, some two decades after the FDR regime had silenced the court by the threat of "packing" its bench with compliant Socialists. Earlier in his article, Bowden writes:

Judges must never bow to social opinion, historical or current, when exercising judicial review. For example, laws that institutionalized government discrimination against blacks in military service and voting deserved to be struck down, even if political majorities in both the Founders’ generation and modern times favored such rights violations.

Yes, they did deserve to be struck down. And who did the striking down? The same Chief Justice Earl Warren, who later in the same article becomes the un-named "liberal Justice" - one among those who "don’t dispute that a judge must bow to the “social will”—they simply divine it differently."

The quoted phrase, "evolving standards of decency," was applied, when written by Warren (in Trop v. Dulles, in 1958) not to the Constitution as a whole - as Bowden misleadingly insinuates - but to the meaning of "cruel and unusual" punishment as prohibited by the Eighth Amendment. "Cruel" and "unusual." Both of these concepts are, as Ayn Rand would say, contextual. Their meaning depends unavoidably on the context of, among other things, "evolving standards of decency." Surely an Objectivist, of all people, should know better than to mistake contextuality for social metaphysics.

What would be the effect of such an argument on a literate reader who does not already agree with Bowden's conclusion? The context of Warren's opinion is not particularly obscure (and I happen to be an inventor, scientist, and teacher of Information Systems; I never took so much as one course in law, much less in the history of constitutional law.) It would not be unreasonable to take, whatever was argued for in this manner, less than seriously. When, if ever, did an accurate idea need to be put forward with so bad an argument? In context, a sufficiently bad argument for almost any idea becomes, in its effect on the literate reader, an argument against it.

The Ayn Rand Center for Individual Rights is a very good idea. I hope that in time its output will improve. But before that happens, it will need to do some heavy lifting in quality control.