Friday, March 10, 2006

Is it Constitutional? Four views.

I've done a lot of thinking about the " legislating from the bench" argument, which derives from the disagreement about whether the Constitution is a living document or not, which is really just two different ways of expressing how people think social change should come about. I don't know that I have a coherent position yet, but Lord knows that won't stop me from blogging.

A while back I thought to myself for the first time that many justices don't try to "get it right" when they adjudicate a case--they try to get it Constitutional. Is this what they should do? One extreme position might be that the court is a mechanism of social change that should be employed in any way possible. The other side--that the Constitution is fixed and should shape all legal decisions--isn't so extreme.

Trying to see what's Constitutional and leaving legislation up to the legislators--radical! I've come to respect the closely worded opinions of conservative justices who don't try to overreach--who say, I disagree with this decision, but it's clearly what's in the Constitution. If you want the law changed call your senator. I just can't decide if I agree with this or not.

But what philosophical view is that?

(1) Morality by fiat--the Constitution establishes what is right and wrong.

(2) Absolutism--the Constitution gets nearly everything right, so it's the best guide possible.

(3) Pragmatism--the Constitution is a decent way of doing law, and we need some way to decide cases while we continue to make new laws and get closer to being a just society.

(4) Local relativism*--the Constitution is all we have, so we might as well go with it.

I'd think that conservative justices mostly fall into category 2, but I realize that these categories don't map isomorphically onto the labels judges choose for themselves, which can include originalist, cautious liberal/cautious conservative, or moderate.

Well? John Roberts or John Stevens?

*Caveat on 4: I don't mean "relativism" in the full-fledged philosophical sense that nothing is right or wrong--I mean that 4 takes a very pessimistic view of what it's possible to know and how well it's possible to decide cases in general.


4 Comments:

At 11:19 AM, Blogger StandingOutInTheCold said...

I honestly believe its something close to number 3 for most people who don't want "legislating from the bench." Here is the way I see it, and I assume many who think like I do have a similar rationale: each of us has our ideas about what we think is best. However, this country was set up so that my ideas are not more important than someone else's and we each have our say through the legislature. The Supreme Court is not subject to elections, so they aren't presumed to represent the will of the people. Rather they are experts in law and they are to represent and uphold the laws that people have wanted enough to put in the Constitution. The Constitution isn't perfect but it represents the collective will of the people. If it is to be changed it ought to be by this collective will so that one person's opinion doesn't gain unfair advantage over another's. Justices are just like the rest of us and have their own ideas about what is best in our society, and their opinion should carry the same weight as the rest of us. When a SC Justice changes the Constitution they unfairly elevate their opinion and therefore abuse their power. In an ideal situation the Constitution would defend itself -- however documents have yet to develop speech and thought, let alone debate skills. So we need experts in law who will swear to objetively uphold the laws put by the collective will into this Constitution. If a Justice wants something changed in the Constitution they need to talk to their legistaltors just like the rest of us.

 
At 10:18 AM, Blogger CharlesPeirce said...

Let me make another distinction: is it any constitution, or our constitution that judges and justices should uphold? Should any judge anywhere EVER rule against any constitution in the name of social justice, or would this be a slippery slope that would end in anarchy?

 
At 12:45 PM, Blogger Jackscolon said...

I think they should uphold the constitution. I agree that ruling against it is a slippery slope that ends in anarchy. The purpose of the courts is to utilize what is already law and apply it, whereas it is the purpose of Congress to make the laws. If the court can both make and execute law, that seems like a violation of the seperation of powers.

If congress passes unjust laws, I think a judge should protest by not hearing the case, not by hearing the case and doing the opposite of what the law says.

 
At 7:43 PM, Blogger Mrs. Momomoto said...

I second the first comment, by standingoutinthecold.

I think it has been an important, positive development since Ancient times, when cases were almost entirely at the discretion of the judge. As it is now, the judge follows law created by the people through an orderly process, and his discretion is limited to by the structure of the law.

This helps maintain a good society in two ways. First people are held to one law, and not as much treated differently on the basis the personal opinion of the judge. Second, it helps prevent ideologies that are popular with people in certain social circles (high level academics and lawyers, for example) from subverting the popular mechanisms for keeping and altering law (passing constitutional amendments, passing local laws, etc.). This is important for preventing oppressive ideologies from reforming society, for the worse for most people. (This is why so many conservatives get so very worked up about this issue. The don't like anything that even vaguely smells like this.)

Yes this means sometimes unfair rulings come down, as a result of flaws in the law (flaws relative to what is moral for law to do, so of course the issue is tightly linked to philosophy of ethics). I think that there is a real tension between the judges having discretion and preventing of the judges from obtaining a problematic sort of control over government retribution mechanisms.

I think that building some degree of discretion into law while concurrently expecting judges to keep their judgments within the law as formulated by the laws determined by the people is a good sort of solution, and one we should probably stick with.

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CharlesPeirce said...

"Let me make another distinction: is it any constitution, or our constitution that judges and justices should uphold? Should any judge anywhere EVER rule against any constitution in the name of social justice, or would this be a slippery slope that would end in anarchy?"

Possibly. I'd bet a constitution could be written such that some temporary anarchy--let alone mere risk or likelihood of anarchy--would be quite preferable to it (Shari'a comes to mind). And there are probably many situations in between. I think ours is something that can really be worked with, though, for the vast bulk of it. It allows "laboratory" legislation at the state level, it contains mechanisms for constitutional amendment that aren't loose enough to cause perpetual disruption, but aren't so tight that things can't grow and change when pretty clearly appropriate.

 

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