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.