The Courts Don’t Do Justice

At the Sacramento Bee Erwin Chemerinsky does a pretty good job of distinguishing between the two present schools of thought on jurisprudence:

Originalism is the view that a constitutional provision means the same thing today as when it was adopted, and that its meaning can be changed only through a constitutional amendment. This approach to constitutional interpretation is attractive because there is a desire to think of Supreme Court decisions as being more than just a reflection of who is on the bench at a particular time.

But this is neither desirable nor possible. The original understanding of the Constitution is unknowable, and even if it could be known, it should not be binding today.

His argument is essentially that such a strict interpretation of the law impedes the Court’s ability to do justice. The opposite point of view is that it is not the Court’s role to do justice but to interpret the law. Doing justice is the responsibility of the Congress.

That the original understanding of the Constitution is unknowable is either a lie or no more true of the Constitution than of any other law. At what point does the understanding of a law become unknowable? After 200 years? After 100 years? After 50 years? The day after it is enacted? The authors of the Constitution left a substantial body of writing explaining what they meant and much of it is quite readable, unlike the turgid Supreme Court decisions of today.

The Supreme Court and the Congress operate along vastly different lines. The Congress runs for office every two (or six) years; Supreme Court justices serve for life (“in good behavior”). Congress makes its decisions for political reasons; the Supreme Court, presumably, through expertise in the law.

No Supreme Court justice has ever been removed from office via the impeachment process. It was tried once.

To argue that the justices follow their consciences rather than the law, as Mr. Chemerinsky does, is to argue for a much more openly political Supreme Court and, because of their lifetime tenure, a much more tyrannical Supreme Court. If we are to have a Supreme Court that rules by the seats of the justices’ pants, they should run for office like Congressmen.

That the Congress has failed to act time after time is a reasonable complaint. The remedy for Congressional inaction on the issues of the day is to stop re-electing the same do-nothing Congressmen term after term after term.

10 comments… add one
  • PD Shaw Link

    Chemerinsky: The original understanding of the Constitution is unknowable, yet we know that understanding would certainly preclude any woman from becoming President!!!

  • Ben Wolf Link

    We know very well the original intent embodied in the Constitution: traditional enlightenment values. And I don’t mean the charicature values promoted by the likes of Steven Pinker; I mean reading Hume and Smith and Hutcheson and Marx; the values of individual liberty and self-determination for all, not just the few who climb to the top of the heap.

  • steve Link

    “The authors of the Constitution left a substantial body of writing explaining what they meant and much of it is quite readable”

    I would amend that to say that there is a substantial body of writing in which the people who wrote it argued about what it meant. There are also parts that were not explained, or not very well. Maybe it exists, but I have not seen any of the original authors explain exactly what they meant when they talked about a “well regulated militia”. Why is that in there? Why not just say “everybody gets to have all the guns they want”?

    Steve

  • Ben Wolf Link

    Steve, I think Madison did lay out his thinking on the matter in Federalist no. 46:

    Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.

  • Actually, they left a lot about that particular phrase. The confusion today is that the meaning of the words, at least in certain contexts, have changed. However, the original meaning is preserved in legal documents, for example the Illinois Constitution:

    ARTICLE XII MILITIA
    SECTION 1. MEMBERSHIP
    The State militia consists of all able-bodied persons
    residing in the State except those exempted by law.

    In other words everybody. That was written in 1976, hardly the mists of the distant past. “Well-regulated” is similar. Madison and Jefferson both wrote about it. The Second Amendment isn’t very satisfying to people who don’t believe in the personal ownership of firearms but they need to achieve their goals by persuasion rather than judicial fiat.

  • Andy Link

    The militia is also defined in law.

    https://www.law.cornell.edu/uscode/text/10/246

    The irony is that is is one of the few places where women are actively discriminated against. Strangely, this discrimination isn’t something the feminist movement is very interested in changing.

  • PD Shaw Link

    Chemerinsky isn’t a good critique of originalism, whatever one thinks of it, since he enlists strawmen and misrepresentations about originalism. As to female presidents, historically the pronoun “he” could be used as a pronoun either exclusive to males or for indefinite gender. I believe the indefinite gender usage is still in dictionaries today, but in the last 30 years or so it has become less preferred to “he or she” or “they.”

    There is a body of knowledge about the meaning given the word “he” attested at the time the Constitution was created. Chemerinsky is using a modernist interpretation of the word “he” which is anachronistic in support an illiberal conclusion.

  • My interpretation is slightly less charitable than that. I think he wants an authoritarian state that’s predisposed to accomplish whatever it is he wants to accomplish whenever he wants to accomplish it. That makes an awful lot of assumptions.

    Following Ben’s lead, I think it’s inevitable that any governmental body that acts on its own wishes without hindrance or let by law, the electoral process, precedent, or anything else will side with the rich and powerful rather than the little guy. It’s why the Founders tried to frame the sort of government they did in the first place.

  • Guarneri Link

    “That the original understanding of the Constitution is unknowable is either a lie or no more true of the Constitution than of any other law.”

    Or contract. Which is why, like any reasonable contract I’ve dealt with, the Constitution has amendment provisions.

    The paper was signed, steve. We don’t need the whims or policy disagreements of the day causing courts to reinterpret it. Its got rules for amendment. If one disagrees with provisions in it, let the legislators deal with it through the agreed upon process.

  • TarsTarkas Link

    A translation of Chemerinsky’s article can be read as thus: Since Congress ain’t passing the laws that I like, and since Trump is blocking or getting rid of regulations that I like, I want the Supremes to make the law what I like, and to hell with all those faded scribblings by a bunch of foggy-minded bewigged bigots.

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