Whose Line Is It Anyway?
Posted by Seth Zirkle on 20 April 2007 | 6 responses
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And here I thought it was an act of Congress, signed into law by the President, that crossed the line, with the Court only affirming. Then again, with all three branches listed we loose laconic flair. |
6 Responses to “Whose Line Is It Anyway?”
Heh, that ad is about the strongest endorsement of original intent jurisprudence that I’ve seen in a while. Good find.
Joshua, what ARE you talking about? Maybe I’m awfully dense for an attorney, but I don’t see what on earth original intent jurisprudence has to do with this ad or its headline.
I recommend Justice Scalia’s book A Matter of Interpretation. There Scalia argues, among other things, that a departure from original intent toward a more interpretive methodology (better known as “judicial activism”) creates an atmosphere of judges creating policy and interpreting given rights / constitutional provisions for what a that justice feels it means in that particular time. The end result of judicial activism is that we expect national policies to be dictated by judges, when in reality their job, Scalia argues, is to simply interpret the original intent of the constitutional drafters (or, in the case of statutes, legislators).
Although I commend the book as the best possible way to put his judicial philosophy, his opinions demonstrate that it’s hopeless inconsistent in practice, no matter how pretty it may sound on paper. (And honestly, I don’t think it’s even that pretty on paper.) How exactly he thinks that “simply interpret[ing] the original intent of the constitutional drafters (or, in the case of statutes, legislators)” is somehow inconsistent with common law judging is beyond me.
The simple fact is that policies (national or otherwise) are dictated by judges all the time, and that there is simply no way around that. Are the debates from the congressional floor important for legislative interpretation because they signify legislators’ intent? Or are they useless for interpretation because if the legislators had wanted a statute to include X, they would have put it in the statute (and not just debated it)?
Unless there’s going to be some decree from on high about what particular judicial philosophy should always be used in such cases, then disingenuous judges will continue to use both arguments to favor pet policies where possible – and brilliant judges will continue to use both policies to make great law where possible. Our goal should be to sanction the disingenuous ones and applaud the brilliant ones. Scalia ftl; commow law ftw.
Ed Brayton, call your office.
Seth,
This is simply amazing. I won’t be suprised if the follow up campaign is a picture of Kennedy with “Traitor” under it.