". . . little shall I grace my cause

In speaking for myself. Yet, by your gracious patience,

I will a round unvarnish'd tale deliver . . ."

(William Shakespeare's Othello, I.iii.88-90)

Saturday, May 2, 2009

The Constitution is Not an "Abstract Legal Theory"

Here's what President Obama had to say yesterday about what will guide him in nominating a new Supreme Court justice (emphases mine):

“Now, the process of selecting someone to replace Justice (David) Souter is among my most serious responsibilities as president, so I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time.”

This statement troubles me deeply (but doesn't surprise me). It represents a seriously radical and activitist philosophy regarding the judicial branch of the government. Note that he doesn't say he will look for someone who will honor the Constitution, only someone who will honor constitutional "traditions" and "values." He acknowledges that there are limits to judicial power, but qualifies his acknowledgement with the adjective "appropriate"--I bet I know who gets to define what are "appropriate" limits and what are not. He elevates the effects of laws on individuals above the rule of law itself, which sounds like a good and compassionate thing, but which calls into qustion any law that can be shown to have an undesirable effect on an individual citizen. Last night on Fox News Charles Krauthammer pointed out that in fact this is a total skewing of the duties of the branches of government. It is the lawmakers' role to think about how the laws they pass will affect citizens; it is the judges' role to interpret those laws dispassionately and precisely. Otherwise, as Krauthammer noted, a bank could never foreclose on a mortgage, because after all, such an action negatively impacts the one being foreclosed on.

Is this so hard to understand? Why don't more people get it?

5 comments:

Barb the Evil Genius said...

Is this so hard to understand? Why don't more people get it?This could be a post in itself, but I think people just don't want to "get it". They profit too much from not getting it, either by acquiring power or acquiring handouts.

Evan said...

Yeah, Barb's right. Populism's just too much fun.

I get so frustrated that people don't get that the Constitution is supposed to be a conservative document, in the "small-c" sense of the word. It's the brakes that keep the system from careening from whim to popular whim. The executive and the legislature are blown about by the gusts of changing opinion; the Constitution is the keel of the ship of state.

And there are those who say "We don't need a keel, look how beautiful and pleasing our sails are!" as we sail headlong into the storm...

Casual Observer said...

I think that the President's statement is a lot easier to understand when one considers his background as a lawyer, Constitutional Law Professor, and former editor of perhaps the most influential legal publication in the world. That a nominee will honor the Constitution is something of a given, it hardly needs reiteration as a judge's job is literally interpreting the Constitution and it's subordinate laws).

As far as looking for someone whose breadth of life experience indicates some sense of empathy and an understanding of how the law affects people's lives...I don't see how these can be interpreted as dangerous qualifications in ANY public office. It's just one of the tools a judge employs in tackling the challenging job of interpreting the law, and so long as it isn't the SOLE analytical method used, I think most people would agree it's great!

I'm curious to know what perspective the legal analysts at Fox brought on the discussion...as far as I know, Charles Krauthammer is more of a politics guy...

Evan said...

That a nominee will honor the Constitution is something of a given, it hardly needs reiteration as a judge's job is literally interpreting the Constitution and it's subordinate laws.

I wish that were the case, but when leading jurists invoke the "Living Constitution" to justify judicial legislation that would have shocked the men who wrote the Constitution, it quite clearly does need reiteration, and loudly.

[Empathy is] just one of the tools a judge employs in tackling the challenging job of interpreting the law, and so long as it isn't the SOLE analytical method used, I think most people would agree it's great!Sadly, I think you're right. Most people would agree. The problem is, empathy isn't an "analytical method" by any stretch of the imagination, and suggesting it has any place on the federal bench is begging for judicial legislation, and inevitable judicial tyranny. By all means lobby your legislators to write empathetic laws or rewrite those you find insufficient. The Supreme Court is the last bastion of the ancient principle that we are ruled by laws, not men. I for one want to keep it that way.

Casual Observer said...

Eepers, it looks like my earlier response didn't load, I'll recap.

The Constitution is a great document to have, it's kind of like having the rules of baseball in hand when you're teaching your kid how to play. Still, any good coach will recognize that the rules alone don't teach a team to win.

I guess, in a way, the Constitution is the same. It doesn't explicitly include so many things. The power of judicial review (to declare a law unconstitutional) for example came about as a result of one Justice's interpretation of the Constitution early on.

Under our English system, it's never been only the legislatures whose acts have the force of law, but the collected decisions of judges across the land, each deferring to those above them.

That's just the law.


Unfortunately though, (while The Constitution gives Congress some power to define the areas where the Court has jurisdiction) little exists in the way of formal guidance dictating what principles (of thought) should be used to come to decisions.
And that's where traditions come in.
In the same way managers adjusting their pitching matchups (lefty reliever/lefty batter) late in the game has affected the way baseball is played these principles affect the body of law without necessarily changing the rule book.


Territorial expansion, time, technology, the expansion of political rights to new classes, and even new laws have all given new meaning to Constitutional concepts including liberty and property so I would expect that many of todays developments would rightly shock the founders.

Still, it is for that reason, that it seems prudent that a President would seek to appoint a jurist with multi-faceted understanding not only of the law but the way in which the various methods of interpretation can/have been used to shape it. Judges are often called upon to rule on scenarios the founders never could have conceived, and an ability to explain their decision making to the people is crucial to maintaining their own legitimacy. A bench diverse in life, occupational and even ideological experience seems an efficient means to that end.