Tuesday, May 11, 2010

The Place of the Personal in Law

With the recent Supreme Court nomination of Elena Kagan (See David Brooks for his very classy takedown of her unwillingness to go on the record with any controversial opinions.) we can expect another round of public debate over whether justices should rule simply according to the law or with the desire to see social justice on the ground. President Obama assumedly has nominated someone who shares his vision of judges having the proper "heart" and liberal values to rule in accordance with a "living Constitution." Needless to say I view such sentiments as a betrayal of law. Law can and must only deal with universal principles for it to mean anything. The submission to abstract laws is justice; the submission to the personal opinions of others is tyranny and sic semper tyrannis. This is not because I see the legal system simply as a set of rigid principles; on the contrary I see a lot of room for personal judgment, just not at the level of the Supreme Court. I would propose a sliding scale to law; the higher you are and the more power you have to make laws the more you are restricted in your ability to apply personal judgment. On the flip side those at the bottom of the legal system, who are not in a position to make laws, have full power to apply their judgment as to how the law is carried out.

The policeman on the street does not make laws. It is simply his job to enforce them and cite or arrest those who violate the law. As a libertarian, I personally am opposed to all drug laws. Rational adults should be allowed to put any substance they wish into their bodies. If I were to serve as a policeman I would have no control over the fact that marijuana is illegal to various extents throughout the country. That being said, I am not obligated to arrest every person I catch in possession of the substance. A neighborhood with me on patrol would have fewer drug arrests and more lectures to kids about not using drugs. The law recognizes the existence of my personal judgment and expects me not to willfully destroy the lives of teenagers for making just one mistake and taking a puff of a joint. I do not have to take down the local drug dealer knowing full well that he will be replaced by someone who sells to kids and laces his material with potentially poisonous substances.

When we move up the legal system to the DA and the local judge, we are in a similar position. These people do not make laws nor do they have control over who is arrested. They are left, though, to consider as to what extent they will throw the book at those in the dock. What kind of plea bargains and sentences will they offer? They may have the power to put minors behind bars for possession, but that does not mean that they should. At the top of this part of the system, governors and the President may not make laws either, but they have the power to grant pardons. If I were the Governor or the President I would declare an open house on all those arrested on drug charges and offer pardons.

As a member of Congress or a senator I would have the power to make laws. It would be my job, as entrusted to me by my constituents, to enact laws according to my personal opinion as I think best for the country. I would do my utmost to end the war on drugs and legalize them. That being said, my very office would bar me from having any control over how any of these laws are put into practice. I would have to make the best laws I know and trust others to use their best personal judgment in carrying them out.

The top of the legal system is the Supreme Court. They have the unchecked power to declare laws to be unconstitutional and there is no higher authority to appeal to. This greatest of all powers must place the greatest of all limitations. Not only do justices have no control over how laws are carried out, they should not even have the right to use their personal judgments. Their very power stems from the fact that they are perceived as ciphers for the principles contained in the Constitution. If were to go on the Supreme Court, I would lose the ability to fight against the drug war. There is nothing in the Constitution that says that the government cannot do foolish things like ban adults from engaging in actions that do not cause direct physical harm to others. Actually, since liberal justices were kind enough to invent a right to privacy, I would be free to apply this law across the board, including drugs, but that is a side issue.


Larry Lennhoff said...

There is no such thing as simply mechanically reading the law and providing the sole correct answer. If there were we wouldn't need a Supreme Court in the first place.

When laws are necessarily vague (e.g., what constitutes an 'unreasonable' search) the judges background and beliefs will play a role in determining the answer. That simply can't be helped - you can't have an objective definition of unreasonable.

This is a good reason for adding diversity of life experience to the court. 9 white Catholic men of upper class backgrounds may have a very different of idea of what constitutes an unreasonable search than a more mixed group. See, for example, a recent Supreme Court case in which the male justices found nothing unreasonable in searching a 13 year old girl's underwear for contraband tylenol - a conclusion the female judges strongly disagreed with.

Izgad said...

I do not claim that there is one objective way to understand law. That being said the system relies on the willingness of citizens to see justices as standing in for the Constitution and the Founding Fathers and are telling us what they would want if they were here. We can submit to the Founding Fathers, but who is going to listen to some former Harvard law professor as she attempts to push along her personal ideological agenda. This is not a problem with Congress because we can vote them out of power. The chief value of democracy is that it allows an alternative means of change besides for killing people in power. The English monarchy survives because it has no actual power, but also because members of the royal family are quite literally not allowed to publically have opinions on political issues. The Supreme Court should have a similar standard.
Since justices are supposed to be representing the Founding Fathers, there is no inherent value in diversity, again unlike Congress, and diversity might even be a problem. Since the Founding Fathers were all white men it makes sense to say that white men are in the best position to understand other white men. I have no problem with justices who are not white men as long as they can convince me that they think like white men and are not acting as their given minority group.

Larry Lennhoff said...
This comment has been removed by the author.
Larry Lennhoff said...

I removed the comment because it did not advance the conversation. I'll have something more appropriate later, bli neder.

Clarissa said...

"Since the Founding Fathers were all white men it makes sense to say that white men are in the best position to understand other white men"

-A couple of problems with this statement:

1. Nobody has yet been able to prove that race and gender give one a certain special way of thinking that differs from that of the representatives of other races and genders. We don't think with our genitals or our skins, do we?

2. According to the Census, the majority of population in the US will not be white in a few decades. Shouldn't the people who compose the Supreme Court represent the changing demographic reality rather than the race and gender of the Founding Fathers who lived in a completely different society?

Izgad said...


I see the Supreme Court as being the representative of tradition in our system. Tradition is important not because it is superior to us, but because it is an outside power that we can all submit to. I do not believe the Founding Fathers were gods or in any way infallible, though I am in awe at the brilliance of people like Hamilton and Madison and their understanding of the big political questions. They put together a truly magnificent document which, with their one major failure in trying to ignore the issue of slavery in the hope that it would just solve itself, has allowed this country to survive. I have my understanding of the good and justice and you have yours. It is unreasonable to expect me to submit to your understanding. This leads to a standoff. A solution to this problem is to appeal to tradition. I am not about to submit to your understanding of justice, but might be willing to submit to a group of dead white males, particularly if you in turn are willing to do the same. You might believe that equal rights means gay marriage. I do not believe this. Can you expect me to submit to your understanding of equal rights? If you can come to me with your understanding of the Founding Fathers and say with a straight face that this is what they would have wanted I might agree to back down. The Founding Fathers have the virtue of being above the fray; they are dead so not in a position to physically rule over me and therefore safe.
Let me be very clear about this. I believe that women and minorities are capable of serving on the Court, precisely because I do not believe that they have any special understanding that is relevant to being a justice. The moment we admit this possibility then we have to bring in the possibility of a special white male understanding and in the specific case of the Court this white male understanding is going to trump these other special understandings.

Without a question non white Christian males are free to use their personal values and experiences and put like minded people in Congress and even elect a black man as president. Just as long as they do not act outside the perimeters set by the Constitution.

Clarissa said...

"I see the Supreme Court as being the representative of tradition in our system. Tradition is important not because it is superior to us, but because it is an outside power that we can all submit to."

-So, which other traditions are you willing to submit to? How about not using electricity? Just light your room with candles, there's hardly anything more traditional than that. Write with a quill on parchment, don't use computers, credit cards, cars, etc. Somehow, I don't think you are willing to honor any of these traditions. You seem to be quite in favor of enjoying the fruits of progress in all other respects. So why this sudden attachment to this particular tradition?

Izgad said...

I am not advocating any sort of worship of tradition or that tradition should trump all other matters. I recognize a legal and political tradition as having a very specific value in maintaining society from collapsing into Hobbesian anarchy. Is Barack Obama simply some black guy, as some so called conservatives seem to think, or is he the President of the United States, heir to an office that goes back to George Washington?