Not just because they tend to be partisan hacks, like many people, but because they’re often specifically trained to start with a position they want, then find a way to fit the constitution to their desired meaning.

Here’s Orin Kerr, one of the top cheerleaders of endless federal surveillance:

Most students of constitutional law will be familiar with the Level of Generality Game, as it’s a common way to argue for counterintuitive outcomes. The basic idea is that any legal rule can be understood as a specific application of a set of broad principles. If you need to argue that a particular practice is unconstitutional, but the text and/or history are against you, the standard move is to raise the level of generality. You say that the text is really a representation of one of the relevant principles, and you then pick a principle at whatever level of abstraction is needed to encompass the position you are advocating. If the text and/or history are really against you, you might need to raise the level of generality a lot, so that you get a super-vague principle like “don’t be unfair” or “do good things.” But when you play the Level of Generality Game, you can usually get there somehow. If you can raise the level of generality high enough, you can often argue that any text stands for any position you like.

This is opposite of how the constitution should be studied, and read. That is, ignore your personal opinion, find the original public meaning, and if you don’t like it, find a way to change it, instead of lying. Because this approach that Kerr explains is total deception.

Michael Boldin

The 10th Amendment

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