This original approach to value provides a foundation for a new imaginative landscape in philosophy of law. "Value essentialism" identifies value formations such as a sacred cow and scapegoat tandem and the intensification of "oughtness" as it approaches sacred zenith values. Readers learn how Occam's razor has been responsible for the death of many ideas; how the celebrated Other gains nuance as near and remote; and where a spectral assessment of probability and necessity leads. Analyses of Supreme Court cases grow out in different and exciting directions. Bell was not about eugenics, but another iteration of the value of efficiency and Yo Wick was as much about classism as it was about racism. Lochner involved not an ideological binary but three distinct value schemes. "Separate but equal" was refined as parallelism and exploitative tangents. In Brown, the Fourteenth Amendment took a significant subjective turn. In Heller, the communitarian position of stopping violence before it could start could be contrasted with the individualistic position of waiting until you see the whites of their eyes in your bedroom. Citizens United represented the best example of this axiological approach, raising the question: was the First Amendment designed to maximize participation or maximize democracy?
George Miller is retired professor of philosophy. Laura Brown is PhD candidate in philosophy at the University of Iowa.
Part I: Introduction to a New Theory of Law Chapter 1: The Primacy of Value Chapter 2: Law Theories through the Lens of Value Part II: Supreme Court Cases Chapter 3: Self-Determination v. Efficiency, Buck v. Bell Chapter 4: Human Being v. Degraded Being, Yo Wick v. Hopkins Chapter 5: Security of Free Speech v. Wartime National Security, Abrams v. United States Chapter 6: Partial Personhood v. Property, Dred Scott v. Sandford Chapter 7: Integration as a Means of Securing Personal Liberty for All v. Segregation as a Means of Securing White Supremacy and Limiting Personal Freedom, Plessy v. Ferguson Chapter 8: Liberty Over Paternalism v. Judicious State Intervention Over Exploitative Liberty, Lochner v. New York Chapter 9: The Value of Interdependence v. Value of a Private and Independent Economic Sphere, Wickard v. Filburn Chapter 10: The Sacred Value of Privacy in Marriage v. Traditionalism, Griswold v. Connecticut Chapter 11: Malicious Free Speech v. Libel of a Government Official, New York Times Co. v. Sullivan Chapter 12: The Subjective Turn of the Fourteenth Amendment vs. Separate but Equal, Brown v. Board of Education of Topeka Chapter 13: Collective Safety Net v. Individualistic Self-Defense, District of Columbia v. Heller Chapter 14: The Absolute Value of the Establishment Clause of the First Amendment v. Value of Spiritual Heritage, Engel v. Vitale Chapter 15: The Value of Privacy in the Bedroom vs. the Value of Social Stability, Lawrence v. Texas Chapter 16: Weaponized Words v. Fruition of Conscience in Action, Brandenburg v. Ohio Chapter 17: Invidious Discrimination v. the Purity of White Supremacy, Loving v. Virginia Chapter 18: Health v. Liberty, National Federation of Independent Business v. Sebelius Chapter 19: Venerated Objects v. Freedom of Speech, Texas v. Johnson Chapter 20: Functional Judiciary v. National Security, United States v. Nixon Chapter 21: The First Amendment as a Means to Secure Corporate Dominance v. First Amendment as a Means to Secure Democracy, Citizens United v. Federal Election Commission Conclusion: One Hundred Eleven Mic Drop Takeaways, Conversation Starters & Stuff That Can Startle the Stymied into Writing Creatively
