Enforcing a “mood”

It ought to be a major intellectual event in constitutional law when a Justice of the Supreme Court comes forward publicly to explain his theory of judging. Explanation is needed, for by now nobody familiar with the work of the Court believes it confines its rulings to the principles of the historic Constitution. There have always been instances when the Court voted its sympathies rather than anything resembling the Constitution, but over the last half century the divergence between the document and the decisions has sharply increased. Indeed, the criticism that the Court routinely departs from the Constitution’s principles, as they were understood by the men who made them law, is not taken seriously by a majority of the justices or most law school professors.

Members of the public are not so blasé, however, though they believe inconsistent things: both that the Court should stick to the actual Constitution and that any social policy they like must be in the Constitution. Still, the belief that a judge’s job is to interpret rather than legislate retains considerable resonance. That may be why the justices have never undertaken to advance a rationale for their behavior. To declare openly what they are doing would be to throw gasoline on the smoldering debate about the legitimacy of the Court’s activism. The most the justices have said, when questioned, for example, about the propriety of using the Due Process Clause to strike down the substance of legislation—a flagrant misuse of a clause dealing only with procedure—is that the Court has always behaved in that way. The justices must think that they have established an easement across the Constitution just as trespassers acquire a right-of-way across land by years of unremedied intrusions.

While the justices have not felt compelled to justify activism or non-interpretivism (the term used depends on your attitude toward the practice), there has for decades now issued a torrent of justifications from professors of constitutional law. One of the most (perhaps the only) entertaining features of this extensive literature is that each of the professors undertakes (and succeeds) to prove all the other non-interpretativists’ theories inadequate while attempting (and failing) to prove his own compelling. This confused melée does not, however, suggest to any of these legal philosophers that their enterprise is doomed. Perhaps that unedifying spectacle is why members of the Court have not attempted their own justifications.

Interesting review of Justice Stephen Breyer's new book by a man who'd have been a far better pick for the SCOTUS had he managed to slip through the original "Borking."

2 posted on 02/07/2006 11:55:00 PM PST by LibertarianInExile (Freedom isn't free--no, there's a hefty f'in fee--and if you don't throw in your buck-o-5, who will?)

The fact is that his proclaimed deference to democracy is contradicted by his own record on the bench.

It seems to me that by "democracy" Breyer means "egalitarianism", and what's more he seems unconscious of any distinction, which is frightening.

It has even become popular to say that decisions by the Supreme Court is the "law of the land." It is not. The law of the land is the State and Federal Constitutions.

Excellent!

Thanks for the ping.

It's much-appreciated.

-good times, G.J.P. (Jr.)

5 posted on 02/08/2006 9:24:36 AM PST by Do not dub me shapka broham ("The moment that someone wants to forbid caricatures, that is the moment we publish them.")

"It seems to me that by 'democracy' Breyer means 'egalitarianism,' and what's more he seems unconscious of any distinction, which is frightening."

Well, to folks like Breyer, any euphemism will do in the pursuit of fairness (or their perception thereof), never mind a silly old piece of paper, or even the foolish hobgoblin of consistency for the sake of the American people being able to live their daily lives without a lawyer by their side. God forbid these SCOTUScum could make a decision that clearly states the law in black and white, so that people (and police) could at least know when they're breaking it.

Bork skewers him on all of it, which is wonderful.

6 posted on 02/08/2006 9:40:24 PM PST by LibertarianInExile (Freedom isn't free--no, there's a hefty f'in fee--and if you don't throw in your buck-o-5, who will?)

"It has even become popular to say that decisions by the Supreme Court is the "law of the land." It is not. The law of the land is the State and Federal Constitutions."

Amen to that BUMP! Would that our President and Congressweasels agreed.

7 posted on 02/08/2006 9:41:44 PM PST by LibertarianInExile (Freedom isn't free--no, there's a hefty f'in fee--and if you don't throw in your buck-o-5, who will?)

I was forced to ping you--we haven't played on a thread with you in a while. Must be we haven't seen another huge attempted RINO sellout lately for you and me to tilt at windmills about. Just remember, I'm the Don, YOU'RE Sancho. 8)

8 posted on 02/08/2006 9:44:25 PM PST by LibertarianInExile (Freedom isn't free--no, there's a hefty f'in fee--and if you don't throw in your buck-o-5, who will?)

Make that first 'we' an 'I,' don't want you thinkin' yer trading posts with Sybil or something. LOL.

9 posted on 02/08/2006 9:45:29 PM PST by LibertarianInExile (Freedom isn't free--no, there's a hefty f'in fee--and if you don't throw in your buck-o-5, who will?)

WOOT!

Good to know.

:-)

10 posted on 02/09/2006 8:36:07 AM PST by Do not dub me shapka broham ("The moment that someone wants to forbid caricatures, that is the moment we publish them.")

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