“I award you no points, and may God have mercy on your soul”
Tonight’s the Veep debate. Biden v. Palin, what a treat. This will, needless to say, be interesting. I’ll conjure up some thoughts after the debate, or you can catch me on Twitter (sarcascio).
Earlier this afternoon I went to a Federalist Society meeting. Now, for those of you who don’t know, FedSoc is the conservative/libertarian group who believe in a strict construction of the Constitution–meaning that what’s there is there and nothing should be read into it–and believe judges shouldn’t “legislate from the bench.”
That latter phrase is especially meaningless, because that’s essentially what the common law is. Court gets a case, there’s no statute controlling the issue, the judges make shit up based on vague legal authority and even more vague legal scholarship. Boom. Common law, until it gets overruled or reversed. Judges read into legislation all the live long day to find out what intent a given legislature has imbued into it. In fact, there’s a whole section of my Torts class where we talked about how judges were reading into criminal statutes what intent the legislatures had to see if they (the judges) could import that criminal statute into tort law.
Right from out of their asses, it came.
So anyway, I think “judicial activism” is a silly phrase, when basically the judiciary is always activist in some form or another to some group or another.
Anyway, the speaker was this fellow, Roger Pilon, who was an interesting speaker, to say the least. He definitely butted heads with some of the folks in the room, including this guy, Professor Sasha Volokh, who, along with his brother, run The Volokh Conspiracy. Needless to say, all of these people are really big deals in the legal world: Pilon is with the Cato Institute and has an impressive CV, and the Volokhs are equally impressive.
Pilon mainly talked about the 14th Amendment and how it essentially ruined America for all the libertarians out there. He wants to return to a very strict interpretation of the Constitution, one exactly and totally in line with how the Founders wrote it. He fully believes this is a tenable position to hold. I am not so sure.
I did agree with some of what he was saying: the government should only step in when the rights of a person or group are being trampled on by some other person or group. That is perfectly fine. However, Pilon paints the government as a villain in all that it does, not a necessary evil but an unnecessary evil. He also made some incediary remarks about how we are not all equal and that there is no equality of opportunity, only “equality under the law.” This is, of course, open for debate.
Anyway, this gentleman, Professor Peter Linzer, gave a rebuttal to what Pilon was saying and agreed with him on many things but also disagreed with him. He mainly diverged from Pilon regarding government intervention into the markets, citing the current crisis as evidence that a lack of government intervention is what caused this in the first place. Pilon countered with a vaguely “But Clinton!” statement, claiming that the Clinton administration wanted to broaden Fannie and Freddie’s ability to give subprime loans to people who apparently could not pay them back. Now, your humble author doesn’t know all the nuances of the crisis, so I will hold my judgment on this.
All in all, it was a very good lecture. Most people left around 1pm because they had class, but I stayed for about 45 more minutes to hear students (and Professor Volokh) try to argue against Pilon, who had a coherent response for every question.
I think this is why I came to law school, this fascinating exchange of ideas. It’s too bad you don’t really get that during class…
Keep studying, you will soon understand that judicial activism as an aberration. Judges should not make law, that is a legislative prerogative. At least that is what the founders believed. We have slightly different system that most of the world, our founders did not consider it important to require that judges have legal training prior to appointment to the bench. Check the Constitution, there are no qualifications specified for any judicial appointment. It’s not that there were no lawyers among the group writing the constitution, there were plenty. Lawyers also edited the Declaration of Independence but the principal author was not a jurist. The founders intended that American law be understood by any person with a decent education. They also intended to avoid the problems with English common law that arose from the lack of a written constitution. Our constitution limits the powers of all three branches of government, including the judiciary. Traditionally the supreme court had the power to make a legal determination of the constitutionality of a given statute but not the authority to rewrite the statute. that responsibility was reserved to the legislature. Unfortunately we have too many lawyers and not enough restraints upon their activities. The Constitution was written as a restrictive plan of governance not a license to intrude into every aspect of a citizen’s life.
pj
October 2, 2008 at 11:58 PM
Hmm. Well, I find a few things you’ve said fairly contentious. I’ll be brief.
First, I never said “making law.” Judges read into what they want to see in a given law and then rule accordingly based on a number of factors. After this, though, the states are free to pass any kind of legislation they wish that could counter-act or contradict the common law. Now, it could get struck down as unconstitutional eventually, but that is the province of the court. It is not an “aberration,” it is the common law. Even in the case I am reading right now, Burnham v. Superior Court, the Supreme Court says “Nothing we say today prevents individual States from limiting or entirely abandoning the in-state-service basis of jurisdiction.” Ignoring the subject matter, Scalia (the author) basically says that a statute could be passed to change what the Court could say in this case.
To say that judges don’t need a legal education is silly. Judges deal with laws and codes and lawyers and legal reasoning as an occupation, so just putting Joe Sixpack up on the bench with a gavel would be disastrous. At the same time, the jury system allows for an average citizen to become a finder of fact; it was important to the Founders that we have juries of our peers. You’re right, no requirements are in the Constitution for judges, but that is the province of Congress, to make those requirements for the court systems they created.
The principle author of the Declaration of Independence was Jefferson, and he most certainly was a lawyer. http://en.wikipedia.org/wiki/Thomas_Jefferson#Life_as_a_lawyer. Where you got the idea that he wasn’t one is beyond me, though you do say “jurist,” which would imply a judge. Yes he was not a judge, but he was in fact a lawyer.
The Constitution is one of enumerated powers, certainly, and I know that the judiciary cannot rewrite statute. That’s a bit basic for you to lecture me on. There are PLENTY of restraints on the activities of lawyers and judges, including statutes and common law and the state and federal constitutions. To say that there are too few restrictions is simply in error.
Finally, I never said the Constitution allows for intrusion by the government. Some have construed it that way, and a large part of that intrusion is intolerable; a right to privacy has been read into the Constitution per Roe v. Wade and Griswold v. Connecticut. I am NOT, repeat, NOT advocating that the government should be able to intrude whenever and wherever it pleases. But there are some avenues where the government CAN BE BETTER at regulating than, say, the free market, or people in general. Now, whether they ultimately ARE BETTER is up to Congress and our government officials. But to irrationally fear and despise government is silly, because you enjoy the fruits of such government every single day.
Erik
October 3, 2008 at 2:03 AM