Kroger Wins AG, I Wax Legal Theory

So, The Kroge is going to be Oregon's AG. You can probably expect overzealous prosecutions of drug offenders, erosion of the presumption of innocence by giving crime victims control of trials, and to watch a man who doesn't really understand Oregon generally flounder as he tries to apply his experience prosecuting the mafia in figuring out how to deal with thousands of meth addicts. And if Obama wins the presidency, you won't have to worry much about Oregon's DOJ cooperating with unseemly federal tactics, but if it's McCain or Clinton, then watch out.

That said, Toobin's piece in the New Yorker this week reminded me of something very basic about American government that Kroger taught me. When McCain and Scalia say, seemingly innocuously, that the protections for individuals that the Supreme Court has found in the Constitution amount to a legislative power grab, because these protections aren't really (or at all) evident when you read the Constitution, they really are presenting an alternative theory of the Court's role in America. The problem with not allowing the Court to protect individuals, and forcing people to look to Congress for help, is that Congress will usually only do what a majority of people want it to do. If you are in any sort of minority, you can then expect to be subjected to the tyranny of everyone else. The question between these two ideas is then, not about how to read the Constitution, but if the Court's role is to protect people from the majority (outlawing executions of the mentally handicapped, allowing people to have sex without getting arrested, etc.), or is it to sit back and police for legislation so bad it would have even been a violation in the 18th and 19th centuries?

I think that may have been during the same class when he asked us all to write on slips of paper if we wanted to be average, good, or great attorneys, and then told everyone who wrote "good" that they should under no circumstances go into criminal law.