Retired U.S. Supreme Court Justice Sandra Day O’Connor had an op-ed published in The Wall Street Journal last week, “Justice for Sale,” bemoaning the rise of politicized judicial elections and concomitant “special interest” money. Familiar O’Connor arguments, well worth engaging, even to those of us who see higher-profile judicial races as encouraging citizen involvement in our justice system. And O’Connor’s disreputable “special interest” is another person’s livelihood.
But this sentence toward the end, in the middle of a plea for improved civics education (agreed!), undermined the seriousness of her case:
Perhaps children can understand the role of a fair and impartial judiciary better than any of us. Children depend on their teachers, their parents and their sports referees to know the rules and to apply them fairly.
Submitted, your honor: Children do NOT understand the role of a fair and impartial judiciary better than any of us. OK, they’re quite conversant in the Eighth Amendment of the U.S. Constitution — no spanking! — but otherwise, we’ve found kids to be quite wanting in their legal comprehension.
All this came to mind after reading a line yesterday in the New York Times obituary of Harold J. Berman, the great legal scholar.
Harold Joseph Berman was born on Feb. 13, 1918, in Hartford. Under a theory he enunciated in 2006 for The Fulton County Daily Report, an Atlanta legal and business newspaper, he said that he, like all children, had been a law student from a young age.
“A child says, ‘It’s my toy.’ That’s property law,” he said. “A child says, ‘You promised me.’ That’s contract law. A child says, ‘He hit me first.’ That’s criminal law. A child says, ‘Daddy said I could.’ That’s constitutional law.”
Well, if Harold Berman says so …
Hat tip to Jonah Goldberg at the National Review.
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