Professor Epstein argues that civil educated discourse being drowned out by uncivil persons on your own side makes informative debate difficult and then shows simply that Professor Sunstein's reaffirmation of FDR's Second Bill of Rights is unworkable.
All true. The problem is that the good professors are too caught up in intellectual notions.
The US Bill of Rights works. Early criminal works because they took of one of the key advantages of controlling an opponent -- denying him part of the field of play.
The idea is simplest on a chess board. Trying to learn chess a few years back, I bought a book by Eddie Fisher. One of the key notions is limiting your opponent's ability to move. Use the edge of the board as a weapon, then push him toward that edge that he cannot course. Think of a king versus a queen. For every move the king makes, the queen can swift react and push the king into a corner before retirement becomes evident for even a beginner.
The notion of good law is that it simply prohibits part of the field of play from the criminal. Do not murder. Murder is the knowing or intentional killing of another. Done.
Don't hit people. Don't threaten to hit people. Don't steal.
How about yelling or loud music? Hmmm . . . . Let's just discourage that.
For two people in one room, you have most of the rules to provide those two sanity.
Once you start saying that you cannot intentional kill if the music is too loud, you need two lawyers. One to argue that the music was too loud. The other to argue that the complainant was too old (Remember? If the music is too loud, you're too old?). Now age is possibly the problem?
Complex rules lead to complex arguments. Simple rules, simple arguments, simple compliance.
Professor Sunstein's and FDR's failings is that they want to describe the preferred world and make it a right. They might as well say that the teenager has a right to listen to loud music. At least I will still have a job as a lawyer wearing earplugs, even if you are too old.
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