Striving Against Opposition

Legal Theory

There is an article entitled "The Right has the Wrong Legal Theory" at Tech Central Station. The article takes the position that the reigning conservative legal theories in the United States wouldn't be a terribly effective guide for the Supreme Court. While it acknowledges that all Conservatives would dearly love to drive a state into the heart of the "living tree" nonsense that's been espoused by the Liberal and Socialist crowds essentially to litigate into law anything which would be far too repulsive for John Q Public to accept his politicians doing.

The oft proposed remedy for this is considered - federalism, originalism and formalism. Federalism emphais's states rights and clear demarcations between federal and provincial power, and the criticism is that its easier for big labour to gain sway over local jurisdictions so their unreliable and we should avoid them. While that may be true of municipal government, I don't see this as being a convincing argument either in the US or in Canada. Conservative parties have had a great deal of sucess at provincial and state levels. Furthermore, its generally proposed by conservatives to insulate themselves from the decisions of Liberals.

Shultz does point out that what's more important in federalism is whose drawing the lines. This criticism is quite true, and he points out that those deciding which level of government welds the power is really important. However, the fact that Supreme Courts currently adjudicate on matters of jurisdiction is simply that fact. A preference to mainting state jurisdiction doesn't alter that, furthermore, his rational as to why state power is undesirable isn't terribly convincing.

Shultz then considers originalism which he describes as considering what the authors of the Constitution thought when they were writing it, grasping at the 'original' meaning if you will. Shultz characterizes this concept as a thought experiment where the judge is to ask himself "if I were Thomas Jefferson/James Madison/John A. MacDonald what did I mean when I sat down to write this". He points out that its simply a way of reading things into the constitution that aren't there and allowing judges to rule by their conscious.

However, I think Shultz is miscontruing what conservatives hope to accomplish with the notion of originalism. Originalism isn't meant to be some sort of seance with the writers of the constitution its simply the negation of leftist extrapolation from the document. Its simply meant to be a stop on extrapolation and to impose a rather literal interpretation of the constitution upon legal matters. If one were to follow an originalist line of thinking you would note that "if the writers of the constitution truely meant for equality provisions to be do something drastic like necessitate gay marriage, they likely would have written that down."

He thereafter considers formalism, essentially that only legal matters and not policy arguments should be be considered. Shultz has a priceless quotation here -

If there were an inverse relationship between a society's health and how much fun its lawyers have (in a just world, there would be), then formalism would be a pretty good approach to law. Surely there is something appealing about any theory that makes law, and lawyering, more tedious than it already is. The problem is, judges will not volunteer to make their jobs tedious. The better assumption is that, in a formalist world, judges will think about all the same policy arguments, but tell their law clerks to write formalist opinions. This amounts to the Wizard of Oz in reverse. The little man behind the curtain really is "great and powerful," but he pretends to be a simple legal mechanic who ponders nothing more interesting than what the meaning of "is" is.

He has a point that a certain amount of cloak and dagger work can be applied to finese the policy issues. However, for the most part formalism is like originalism stems from a rather simple conservative complaint about "liberal" judical decision - "I can read and the law doesn't say that." I feel pushing for the judges to at least need to privately considering policy rather than publicly doing so would be a tremendous step in the right direction as opposed to its public usage now.

While Shultz isn't particularly endeared to the previous conservative notions on how the judiciary should behave, he does hold out one which conservatives whole heartedly embrace as leading us to the promised judicial land defference. Shultz elaborates stating -

When there is a choice between deciding an issue in the courts and deciding it elsewhere, elsewhere is usually the right choice. Especially if the choice is between judges and elected legislators. Let judges read statutes aggressively if they wish -- if they get it wrong, legislatures can always slap them down. But when reading the Constitution, judges should have two mottoes: First, do no harm. And when in doubt, don't.

If one day a Supreme Court sat in Canada that would follow those two simple maxims then I would rejoice. I'd also be a heck of a lot happier if it was a widespread notion that permeated the judiciary. Humility is a virtue that's deserted the bench for far too long. Ardent social crusaders in the garb of judges have come to the fore front. As much as discussing legal theory is a pleasant exercise the fact that once a judge is appointed there is no controlling their behaviour makes it difficult to apply. Short of changing the constitution to impose some sort of term limit the best one can manage is to replace those with delusions of grandeur, who deem themselves the "high priests of civil society" such as Abella and Co. with those more in the image of the late Justice Rand, who took their task seriously and whom had a great and abiding humility in the face of the power that was at their disposal and its potential for abuse.

In Canada I'm afraid reintroducing that sort of humility would take a rather drastic act. Firstly, it would likely require a Conservative government to be elected. Secondly, that Conservative government would have to have the steel in its viens to use the not withstanding clause to illustrate that they are serious about parliamentary supremacy. Thirdly, they would have to be re-elected at least once or twice and appoint people with a certain sense of propriety to the bench. A Conservative judges bon fides shouldn't be the fact his dislikes abortion or is anti-gay, it should be his willingness to rebuff political questions as just that political not judical questions. I think Shultz to some degree plays a game of semantics with originalism, formalism and defference as they all are different ways of expressing the ardent desire for the same thing - democracy not oligarchy.

posted by Chris @ 1/16/2005 01:46:00 a.m.