Carol Platt Liebau: Interpreting the Law, Not Making It

Wednesday, August 24, 2005

Interpreting the Law, Not Making It

Today, Duke Law School professors Erwin Chemerinsky and Catherine Fisk have a piece in USA Today titled "Judges do make law -- it's their job."

The piece is a set-up for the Roberts hearings, and essentially alleges that both conservative and liberal judges "make" law through their rulings -- and that "[c]onservatives are no more willing than liberals to defer to government choices they dislike." Well, the former charge is true insofar as of course (as the authors note) "judicial lawmaking" may consist of "the interpretation of vague constitutional or statutory provisions" or a determination that "clear legal language means something different than what a layperson might think."

But the key question is on what basis a judge (or justice) reaches a decision on these matters in the tough cases. And that's the difference between conservative and liberal jurisprudence: Conservatives rely on the plain text of the Constitution, the intent and understanding of the founding fathers when they ratified it, and time-honored and (virtually) universally accepted principles. Liberals rely on their own (elite) policy preferences, the trends of the day, and other extra-judicial materials.

Take an example that Chemerinsky and Fisk offer:

Two years ago, conservatives were angry the top court did not declare unconstitutional the University of Michigan Law School's affirmative action program. That same year, conservatives were outraged the court overturned the Texas law prohibiting private consensual homosexual activity.

That makes sense to me. Even many of the founding fathers thought that slavery (ie race based discrimination) was wrong -- hence the compromise to allow at least some counting of slaves as part of the population of their state, albeit inexcusably as only 3/5 of a person. Enough Americans believed slavery (race based discrimination) was wrong to fight the Civil War in large part over it. And certainly no one (absent a few fringe weirdos) would today argue that the 1964 Civil Rights Act -- eliminating many of the outrageous Jim Crow arrangements that disgraced this country for too long -- was misguided. Equality is a core American commitment, and has been from the beginning (remember the Declaration's "All men are created equal"?). That commitment has been the engine that has driven the peaceful and democratic realization of that principle from its imperfect inception. Given all those facts, seeing a system established that in fact justifies and enshrines racial discrimination implemented and administered by a state university is good cause for anger.

In contrast, Lawrence v. Texas was a case that illustrates the characteristics of liberal jurisprudence. Through no textual basis in the Constitution, historical precedent, or near-universally shared belief, the liberal majority on the Court substituted its (elitist, blue-state) judgment for that of the Texas legislature, and found that there is never a "rational basis" for legislation that is based primarily on moral considerations. It was done in order to find a Constitutional right to homosexual sodomy -- a "right" that had hitherto never been found in the Constitution, and has certainly never been a core American commitment in the mold of racial equality (in fact, the Supreme Court had ruled the opposite way on the same question about 21 years earlier in Bowers v. Hardwick). What could justify such a radical volte-face in just 17 years (obviously, the words of the Constitution hadn't changed) but a desire to make new ("pathbreaking"), politically correct law from the bench? Seems to me some outrage certainly makes sense here.

Finally, any examination of liberal jurisprudence must include Kelo v. New London. That's the case that allows the government to "take" private property and give it to private developers who will pay more taxes. Conservative jurists objected -- the Fifth Amendment plainly reads: "nor shall private property be taken for public use, without just compensation." And "public use" means what it means and has always meant -- public use, i.e. road, bridge, airport. Liberals, however, rewrote the Fifth Amendment -- "public use" = "public purpose" = "higher tax revenues." And so the prospect of receiving higher taxes from one private party than another was somehow deemed to be a "public use" sufficient to justify the government's confiscation of one private landowner's property to be given it to another, more favored private landowner.

Chemerinsky and Fisk admit that liberal judges "make" law -- a concession that they must make, as their own examples demonstrate that judges uphold racial discrimination but strike down laws that represent a people's long-held moral consensus. The only way they can ameliorate this sad fact is to argue that "well, conservatives do it, too!"

Not so.


Blogger Draino said...

I believe you have a law background and I'm impressed. However, I think your rabid politics are coloring your intellect in this area. Your post is too long to comment on all of it but saying "liberal" judges make up laws as they go along and conservative judges "play by the rules" is simply wrong. Ask anyone on the Supreme Court (with perhaps the exception of Scalia who, as brilliant as he is, is a bit of a loose cannon) and they too will disagree with you. I have also heard S.C. Justices say they are dismayed about the politics surrounding the Supreme Court but cite many instances where this has unfortunately happened in the past. Thank God the framers of our country created a branch of government that is at least slightly shielded from politics. The role of judges as you well know is to decide arguments based on the evidence presented. Their decisions are final unless reversed by a superior judiciary. Those are the rules. To start writing off all judges you don't agree with as loose cannon crackpots who aren't "following the rules" is ridiculous and simply undermines the entire institution. We are talking about people who train long and hard to interpret law and 99% don't think in terms of "liberal" and conservative" but dedicate their lives to making the best decisions they can based on the law. Often their lives and the lives of their families are lost or in jeopardy because people inject rabid politics into what is a very difficult job. It is truly sad. One of your "activist" judges recently had her family murdered. Tom Delay has incited people to the point of endangering judges. You have every right to disagree, but to simply dismiss people who have spent their lives interpreting the law and are far more qualified than you or I, is wrong and even dangerous. Present this argument in Joan Lufkow's court and she'll hold you in contempt!!

4:24 PM  

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