The Smallest Minority on earth is the individual. Those who deny individual rights cannot claim to be defenders of minorities. - Ayn Rand
The problem with the grains of sand and the heap is easily solved by recognizing the "transition" between the two is neither. If the Supreme Court had a mechanism for recognizing and avoiding the transition, we would have better results. As it is, they muddle in the transition until we end up on the heap.
OK, so now you've got some grains, followed by the transition, followed by the heap. Now all you have to do is identify the boundary between "transition" and "heap".
You're back where you started. It's an infinite regress. Introducing another category doesn't help when the problem is the inadequacy of categories.
If you want to talk meaningfully about how big a given mass of sand is, we do have a method that serves very well: Measure it and give me the number.
No, what you want to do is recognize when you are in the "transition region" and then back away to the grains. That way you never approach the heap.
It's like in transition from laminar to turbulent flow in the fluid mechanics of boundary layers. You have a well defined region called laminar flow. You have another called turbulent flow. Then you have the poorly defined region in between called transition.
It is easy to recognize when you are not in one of the well defined regions. As soon as this happens, you need to back off and get back to, in our case, the few grains.
It doesn't work that way, though, Ben. Fluid mechanics is an analog model. Law is discreet, and the transitions can be abrupt, and more than that, chaotic. Plus, what can appear to be smoothly laminar to society at one point, much later can appear to be turbulent ("separate but equal" for example.) It's not just a flow function, it's a time function as well.
(And don't argue law with a guy whose website is obiterdickhead.com!)
A well written, thoughtful piece.
Thanks for the compliment! You're welcome!
The Dred Scott decision could not have been made differently unless Taney had been as brazen as the justices of today's 9th Circuit. The US Constitution protected slavery until the ratification of the 13th Amendment in 1865.
Granted. But it didn't have to be written as far-reaching as it was, either.