Monday, November 07, 2005

Judicial Philosophy

While this probably isn't my most exciting post, it is informative and will help to understand a much more exciting post that I've been working on for later in the week.

With all the hubbub about Supreme Court nominees lately, I think it would be useful to speak for a moment about judicial philosophy as it relates to Constitutional law. In my class on that very subject, we learned on the first day that there are seven primary methods of constitutional interpretation.
1. Textual
2. Original Understanding
3. Ongoing History
4. Doctrinal/Precedential
5. Structural
6. Ethics/Values
7. International Practices
Textual interpretation involves looking at only the words in the text of the Constitution. Since we all know that words have no set meaning, this clearly can’t stand alone. So Justice Scalia (among others) moves on to the second, which asks the question, “What did they mean when they wrote that text?” The ongoing history (or evolving Constitution) method looks at the Constitution as a document that changes to meet the needs of the present. The doctrinal method looks at prior cases from the Court and attempts to apply the principles in those cases to the present one. The structural method looks at the whole document and tries to find overarching principles in that document and the functions that it has put into place. The ethics approach looks not only at the document itself, but also at the values contained within, and is inextricably related to the ongoing history method. And the international practices approach, while not fully accepted, looks at what other nations have done and reads the text in light of international experience.

Where am I going with this? The answer is this: I like the first, second, fourth, and fifth methods because they keep the balance in the checks and balances and the separation in the separation of powers. They respect the intent of the people who wrote and enacted the Constitution. I don’t like the third, sixth, and seventh methods at all. And the reason is that they evidence a lack of faith in the democratic process that overarches the whole Constitution.

How would you like it if, after you die, the judge looked at your will and, instead of trying to do what you wanted, he did what he thought was fair?

These (questionable) methods are based on a few lines in the Constitution. The Ninth Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Tenth Amendment reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.” And § 1 of the Fourteenth Amendment reads, in part, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

If you wanted to look at the original understanding of the 9th and 10th, as I would suggest, you would know that they were intended to limit the power of the federal government and retain power in the states. But some justices like to look at the phrases “other[ rights] retained by the people,” the rights “reserved . . . to the people,” and “the privileges or immunities of citizens” and extrapolate new rights, not written into the Constitution or intended by the people who wrote it, thereby expanding the power of the federal judiciary.

This concept, known as substantive due process, is used to put power in the hands of the unelected judges so they can put their own policies into place. How do they explain it? Well, Justice Douglas (the bastard), in Griswold v. Connecticut, said it this way: “[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” That’s right. He thinks there are penumbras surrounding the rights, and that said penumbras are apparently emanating in such a way as to let the justices of the Supreme Court to do whatever they want.

They use this to strike down laws they don’t like, such as those that prohibit the use of contraceptives or abortion.

When people accept these methods, they accept rule by philosopher kings rather than by democracy.

My lack of faith in this method of constitutional interpretation knows no bounds. Many people find themselves unable to say that the Court shouldn’t strike down anti-contraceptive laws, or other equally silly and unpopular laws. However, I say this is none of the Court’s business. As the dissenters in Griswold pointed out, the Framers of the Constitution allowed for change within the document, through the process of amendment. They didn’t entrust this to the judiciary. And the political and democratic processes will solve all the problems the Court sees, given time. And when it does, people won’t be pissed at the Court for it. The Court is unaccountable, and shouldn’t be making any kinds of policy decisions.

Of course, it’s different when a law infringes on free speech, free exercise of religion, or the rights of the criminal accused. These rights are already protected, and the 14th Amendment applies those same restrictions to the states. But if we really want the Court to be doing what it does every single term, then I suggest we enact the following amendment:
“The rights protected in the Constitution shall be construed to have penumbras, formed by the emanations from these rights, so that those guarantees will have life and substance.”


  1. philosopher kings... are they all that bad? An interesting point, really, and one I have to reluctantly agreed. As an interested observer I tend to agree with the judges ideas, but you are right to say that they should not be exercising the powers the way they do. Its up to elected representatives to do so.

  2. Kelly, I agree with you 100% here.

    I haven't had time to read some of your previous posts lately other than the one about parking spots which I thought was very funny.

  3. Kelly, i didn't read the post. Not into politics. What I want to do is get over my bias against Lawyers. I find myself wanting to make snid & probabally Ignorant remarks. Look i know lawyers must get that, alot. So, if you would, give me some argument for yourself or justifacation. Of course I know they are handy when ya need one.

  4. Well, l>t, that's an interesting comment. I can't answer that question any better than The Language Guy already has. But here's more.

    I assume you don't mean for me to make an argument for my existence, such as "I think, therefore I am."

    Everyone seems to hate lawyers. (Not as much as they hate dentists, but probably right up there.)
    Here is my theory why:
    Studies show that when people have a good experience with something, they tell an average of around 2 people about it, and they soon forget it.
    When they have a bad experience, they tell 5 people and remember it for a long time.
    (Of course, I'm fudging the stats there, but they're reasonably accurate.)
    Any time you're in litigation, there is always a loser. So the bad blood builds up, and not much good blood is there to offset it. But remember, lawyers aren't the ones bringing the case. Everyone hates lawyers until they need one.

    People also perceive lawyers as making things more difficult, with their complex language and red tape. Refer to the Language Guy's post, and remember that all of that red tape and complex language is there to prevent litigation and is based on problems people have already encountered. As my first-year property professor said, the job of a property attorney is to keep their clients out of court. This applies to most attorneys even outside the property arena, for example, business attorneys.

    People also distrust lawyers because they see advocacy as dishonest. What I mean by that is, when a lawyer is representing a client, they personally may not believe anything they say. But that's their job! We are trained to see both sides of every issue, and are perhaps better capable than any other group of people at seeing things impartially, even though our job is to present things in an extremely biased way.

    Note that Socrates was executed for one of the main reasons people don't like lawyers: he questioned the accepted way of things.

    Does that perhaps satisfy you? Or could you be more specific?

  5. Do lawyers have their own code of ethics? What if you know someone is guilty (down in your heart)? & what they've done is heinous, do you struggle w/that?

  6. you are right, about, people seeing more into a negative (I know from living in a small town) It's much more interesting to make someone a villian.
    It seems a contradiction to me when you say, lawyers see things impartially, even though your job is to present things in a biased way.
    Do you see where I struggle w/that?
    But, the fact that you answered me makes you human to me & that is the most important thing.
    See, I just had an insight. thanx

  7. First up, yes, lawyers have very strict code of ethics. Part of that is doing the best job you can for your client. And no, the idea of defending a guilty person doesn't bother me. In fact, it's less scary than the thought of prosecuting an innocent person when I don't know they're innocent.

    And the reason we see things impartially is because we look at it from every angle. The first assignment you get in first-year legal writing class is to write a memorandum. In this memorandum, you take a factual situation and lay out all the possibilities and arguments for both sides, and then you decide which arguments are stronger (and how much stronger they are). Teachers in classes will often ask you what you think about something, and after you answer they ask you for the best argument for the other side.

  8. todd, now you're laying on the lawyer talk. you know there's a diff. between Guilty/not Guilty & proven/not proven. yer splitt'n hairs.
    Kelly, is it right to win because, you have the best argument?
    This might take a little thot for me.

  9. BTW, heavey Metal man, You ain't heard nothin untill you've heard 'Deep Purple'

  10. I think Todd has something with the nomenclature behind criminal verdicts. When they say "not guilty," they don't really mean they don't think he did it.

    I would say that, at the trial level, whoever has the most believable story wins, and the defendant gets a handicap in his favor. Is it right? Well, it's as right as we can do it. What would be right in an ultimate moral sense is for the guilty to always get punished and the not guilty to always go free. But humans aren't capable of knowing things like that for a fact, unless they witness it first hand.

    At the appellate level, then yes it is right for the person with the best argument to win. The best argument should control the law, and we are a nation of laws rather than of people.

    BTW, everyone and their dog has heard Deep Puprle. I've even heard Metallica play Deep Purple.

  11. Ha! Ha1 well my deep purple is an LP and I have 30 year old cherry wood speakers. it just ain't the same.
    You guys are really giving me an education in Lawyer talk. I think I'm getting it.
    So, for me as a citizen, my best bet is to not rely on my own code of justice, but learn how the court sees it.
    Learn to speak the language, so to say.
    I would like to hear Metallica play Deep Purple. Which song do they Play? I've got 'Made in Japan' & 'Burn' on LP.

  12. P.S. Kelly, You're not getting into the argument currently on L. Guys site?

  13. The persuasion and Bush argument? No, I don't like to get into political arguments because I generally don't like politicians. That may seem strange since my judicial philosophy (if a non-judge can be said to have one) puts great faith in the political process. But the reason I don't like activist judges is because they are just politicians in cheap robes.
    And they played the first part of "Smoke on the Water."

  14. 'Smoke on the Water' Deep Purple version. I turned it on to my son & friends. They love it, great party music. They like my Creedence Albums, also. What can i say. We are hillbillys.
    I will get my very smart daughter to find the Metallica version for me & download it.
    She is out of town right now. A dancer, exotic (Don't you dare call her a stripper). are you married? I'd like her to meet a lawyer.

  15. As far as I know they only played the opening riff, mostly as a joke.

    First you don't like lawyers, and then you want your daughter to meet one. Interesting.

    No, I am currently not married, but I will be in a little over a month. Sorry.

  16. O.K. you are superior, whatever. i just want to learn lawyer talk.
    I guess justice in this country is as good as any other system we have.

  17. i mean the music thing, you won. BTW, my daughter says, she doesn't want to get married any & not to a lawyer. She says, you'd want to win every argument & she'd get screwed in a divorce. What was I thinking, I must be getting over my lawyer predjudice.
    Iam going to listen to the metallica bit(If I can stand the noise) & let you know what I think