eudaemonia

Slap

I disagree: constitutional jurisprudence is really just that easy. The administrator’s position has failed to address the nature of judicial authority. Once again an apparently legally trained interlocutor has failed to discuss that thorny problem of justifying the power you exercise. Is this the fruit of the lamentable state of law school education i.e. “law school philosophy”, or just hesitancy in proximity to the abstract? As a Neuroscientist, like any other informed citizen, I do have an ox to be gored. I do not wish for a corrupt judicial philosophy to enable marginally educated hacks to dither away my rights both as an individual and as a potential member of a legislative majority. How nice Justice Breyer is, is really beside the point. Good manners and congeniality do not make up for lack of epistemology.

With regards to the practicalities of constitutional jurisprudence, you must determine a hierarchy of values to guide your application, and the primary value is that your actions must have authority and not just institutional power. If this threshold is not met you may not exercise said power. It is no justification for the exercise of judicial power to displace legislative majorities by stating that a Constitutional phrase “must mean something”. Judicial interpretive theory and judicial action must be made commensurate with the political theory that justifies its office: the democratic principle and the nature of sovereign authority that rests with the people. Strict constructionism means that judicial interpretive theory must be “restrained” in the face of ambiguity. It is the only theory that is apposite with the political philosophy which informs our political theory that in turn lays down the foundations for the ultimate sovereignty of the people when exercised in conventions. I eagerly anticipate an argument that establishes authority of a judge to depart from the Constitution. But these are never forthcoming. All rationalizations for unmoored jurisprudence point to how difficult strict constructionism is, especially when a judge can do so much good. Strict constructionism isn’t a conservative doctrine, its simply a fundamental legal doctrine that is necessary for a people who endeavor to govern themselves by the rule of law and not men.

On another note, I disagree that certain constitutional phrases are so ambiguous as to mean nothing. It’s laughable that one would suggest that a mere 200 year old document from our same culture and tradition is bourgeoning into meaninglessness. Please cite me your linguistic anthropological source supporting this position, not another very nice lawyer. This position strikes me as law school rumor passed on by those enamored with judicial power. I regularly read 2000 year old texts in classical Greek and can discern their meaning. Moreover, Neuroscientifically mind you, it would be evolutionarily impossible for our species to have evolved were we not be able to communicate our thoughts and intentions to our contemporaries and succeeding generations. I’ll address Darwinian Jurisprudence in a later post.

posted by spelunker @ 8:24 AM 0 comments

Bryer and the judicial transcendentalists

What is required here is for a discussion of the nature and sources of Supreme Court’s authority as distinguished from exercise of a judicial-like power. Bryer argues as if this question is not relevant and Scalia touches upon it obliquely. Bryer’s position is that judicial power can be exercised to almost any extent so long as a justice tells everyone his/her reasons. Apparently if you’re a really good person and candid as to your motives you can reach almost any position. How this acts as a limitation or is even distinguishable from the despotic exercise of power is a question I lay aside for now. Scalia rightly questions how "candidness" acts as a limitation. He notes that decisions by legislative majorities that go so far, and no further, represent compromise and bargaining, and thus represent as much a part of the legislative will as the generalized “purpose” Bryer purpurts to divine. But what is painfully absent in Scalia’s rejoinder, is a discussion of why a judge is limited by a given statute’s purpose to begin with. In my opinion, this leaves these two Justices arguing past each other, and perhaps the failure to address authority is why this rather simple issue remains the point of so much contention.

The nature of our SC’s authority in our tripartite democratic republic is that it invokes a document adopted by the supreme sovereign will against statutes representing the will of temporary majorities. The institutional structure through which the temporary legislative will and judicial judgment is exercised is created and limited by the design of the document adopted by the supreme sovereign authority: the people. Therefore, and it follows very simply, the authority of the SC’s power to limit legislative will derives exclusively from its function of applying the letter of supreme law, The US Constitution, to statutes passed by legislative majorities. To the extent that a judge replaces his/her view in place of the constitutions text and structure, and irresistible inferences therefrom, then that judge is exercising judicial-like power but not authority. This isn’t rocket science.

posted by spelunker @ 3:53 PM 0 comments