|AJ Antonin Scalia official portrait.|
(Source: Wikimedia Commons)
If you want to see a very good example of a straw man argument, I suggest you read Daniel Fisher's attempt to take down AJ Antonin Scalia's dissent in United States v. Windsor, posted in Forbes. It's witty, light reading and betrays very little grasp of Scalia's argument or his judicial philosophy. In fact, it demonstrates just about everything that's wrong with the media and political discourse today.
Here is my best attempt to reconstruct the steps Fisher took to write his article:
- Skim through Scalia's dissent, pulling out of it some juicy quotes on the fly. This isn't hard to do, because Scalia's writing is eminently readable, remarkably free of legal jargon and obscure polysyllabic words.
- Go back to Scalia's dissent in National Federation of Independent Business v. Sebelius and do the same thing. This is a longer process, because it actually involves three separate cases that were combined, and covers four different aspects of a very long Act.
- Convert judicial restraint from a general approach to an absolute principle.
- Write your post, making sure you keep it within Forbes' word limit.
Step 3 is where the shape of the scarecrow is put together. The transformation is something like the conversion of William of Ockham's "law of parsimony" into "Ockham's razor": A principle that merely admonishes one not to introduce unnecessary elements into an explanation somehow became a reductive, misleading idea that true explanations are always — or at least usually — simpler than untrue explanations.