Thursday, March 01, 2007

Jonas On Judicial Automatons

Beware of anyone talking about "evolving law." Expressions like "the living Constitution" usually signal a person intending to use the law for an instrument of social engineering. This is the main distinction between "purposive" judges, so-called, and strict constructionists. Strict constructionists try to read and apply the law as set down by legislature or precedent in their original context. When purposive jurists talk about "contextual" judgements, it usually means taking words and ideas out of the context in which they were used by the legislators or courts that pronounced them, and putting them into some other context of the purposive jurists' fancy.

Purposive jurists not only feel free to use the law as a platform for their political philosophy but come to believe that there is a moral imperative for them to do so. They feel not only licensed but commanded by history: they think that by "updating" the law, or "reading-in"--that is, smuggling into--a statute or the Constitution whatever strikes them as equitable or socially desirable, they are performing a benevolent or "progressive" function.

The opposite is more likely. Elevating human desire to human rights can destroy the rule of law even when such desires are equitable and well merited. Obviously this applies even more strongly to human desires that are neither.

What complicates matters is this. Although judicial activism gives rise to grave dangers, all judges are bound to interpret and apply the law. They cannot help it; it is their duty. Courts are obliged to measure a given piece of legislation against the principles of the country's constitution, written or unwritten. Very often judges need to divine the intent of the legislators, as far as their intent can be discerned, by using settled rules of statutory interpretation. Courts may also be required to gauge statutes against the principles of common law, as established by judicial precedent.

This is not the same as judicial activism. Legislators and citizens fully expect courts to interpret statutory or common law, measure it against the supreme law of the constitution, then apply it to the cases they hear. Testing statutes and legal procedures against constitutional and common law principles is what judges do--all judges, whether they are strict constructionists or judicial cowboys. What separates the two tribes is that judges belonging to the first are willing and able to uncouple their own personal social and political philosophies from their obligations as jurists, while those in the second tribe are unable or unwilling to do so.

None of this is new, though it is salutary to restate it from time to time. However, what is almost never noted is that in democracies, whether based on parliamentary or congressional models, legislators often want judges to usurp their functions. The reason is simple. Legislators who pass unpopular laws, or laws that turn out to have unintended side effects, must put their jobs on the line. Rather than expressing their own social philosophy by passing laws and risking the censure of the voters, lawmakers and governments often find it more convenient to appoint like-minded judges. Like-minded is not enough, of course; they must also be judicial activists who can be counted on to "read-in" or strike down legislation that elected representatives do not dare to create or strike down themselves. Far from usurping the function of legislatures, such judges act as their dummies.

George Jonas Beethoven's Mask