Noah Feldman takes heart
Indignity Vol. 5, No. 21
THE WORST THING WE READ™
Who Will Be the Last Person to Write That This Is All OK?
PROFESSORS OF LAW, witnessing the collapse of the rule of law, have a few options. More principled and dedicated ones may set aside the old premises they were taught and try to describe, and warn about, the instability that's happening around them. Less principled ones may try to cynically adapt their positions and justify the instability as being perfectly reasonable. And then, in the Bloomberg opinion section this morning, there was Noah Feldman of Harvard Law School, to tell the readers that there was no real instability going on at all.
What the country's constitutional system was experiencing, Feldman wrote, was a "stress test," like the heart exam you get at the doctor's office. "We’re on the treadmill, with instruments recording everything that’s happening," he wrote.
Already, his metaphor had failed in two key respects. First, when the doctor gives you a stress test, the whole purpose is to test your heart in a predictable manner, according to an established script. The treadmill does not start off at top speed, or throw itself into reverse without warning, or hurl you sideways into the wall, depending on the doctor's mood at the moment. The physician's assistant has not announced, in advance, that the goal is to put someone "in trauma."
Second: what instruments? As Feldman's piece was being published, people trying to keep up with the news were forced to choose between the New York Times reporting that Elon Musk's underlings had "read only" access to the central federal payment system they'd commandeered and Wired reporting that a 25-year-old Musk engineer had "the ability not just to read but to write code." The night before, the acting U.S. Attorney for the District of Columbia had offered in public to help Musk, after Musk declared that publishing the names of the workers who are taking over the government's computer systems was "a crime."
And then Feldman tried to move from metaphor to facts.