Joel Jacobsen

In his review of Jeffrey Rosen's new book, Professor  Thomas Healey (who really ought to be teaching at the University of Texas)  draws a distinction between the merits of a court's constitutional decision and its practical effects.  (See post 145.)  My brother reports that in engineering circles the distinction is sometimes made with the question: That's all very well in practice, but how does it work in theory?

When the Supreme Court reworked the sixth amendment's confrontation clause in 2004, the merits of the case had to do with more-or-less rarefied questions of constitutional theory.  They also had something to do with the strange discipline practiced by justices under the rubric of "history", which has virtually nothing in common with history as practiced by historians.  (See post 81 and post 131)

The practical effects of the case were far simpler: Crawford and its follow-up Davis (see post 127) made it far more difficult for the states to prosecute domestic violence and child abuse cases.  And that's the euphemistic way of putting it.  What they  actually did was prevent the states from prosecuting many such cases.

Both opinions, as it happens, were written by a conservative, elderly father of nine children.  If you knew nothing at all about the particular father of nine except that he was 70 years old and quite conservative, what would you guess his feelings would be about statutes that permit agents of the state to interfere in a father's relationship with his wife and children?

One can easily believe that such a person, being a loving and kind family man, would deplore the extreme violence that prosecutors in this field never quite get used to learning about.  But he might also be very skeptical about the nanny state's right to critique his parenting skills, or regulate his marriage.  He would be incensed at the thought of self-righteous government bureaucrats trying to coax (or coach) his own children, his own wife, into testifying against him.

If a person like that happened to get the chance to write some fundamental law governing the investigation of crimes within the family, what sort of law would you expect him to produce?  Is it possible, just possible, that maybe the "merits" of the resulting decision are the side-effect, and the practical effects the intended ones?