The Inevitability of Legislating from the Bench

 

The Senate Judiciary Committee hearings
on the nomination of Judge Sonia Sotomayor to the United States Supreme Court reminded us once again of the never-ending debate as to whether judges should “legislate from the bench.” Political conservatives, of course, say that they must not. The job of judges, we are told, is to judge in accordance with the law; it is the job of the legislature to make law.
 
Political liberals, on the other hand, believe that judges should legislate from the bench. Of course, they never say this in so many words. Quite the contrary, they insist just as strongly (well, almost as strongly) as conservatives that judges should not legislate, that they should judge in accordance with the Constitution. But liberals then immediately contradict themselves by saying that we Americans have a “living Constitution” — an expression that, translated into plain English, means that the Supreme Court should, when appropriate, make de facto amendments to the Constitution.


The truth is, as everyone knows (or should know), it is inevitable that judges will legislate from the bench. Even if we had a judiciary made up of nothing but the strictest of strict constructionists, we would still have an ever-growing body of judge-made law.

 
This is inevitable because of one principle and one fact: Judges, when they take jurisdiction in a case, have a duty to decide the case. They cannot say, “Oh, this is much too hard for me. I don’t know what to decide. I give up. Next case, please.” (Here and there we run across judges who, due to some moral or psychological problem, do in effect say this. But insofar as they say it, they are bad judges who violate one of the most fundamental of all judicial duties.)
 
The fact is that statutory and constitutional laws are frequently written in such a way that their meaning is not perfectly clear. If the meaning of all laws were perfectly clear, laypersons wouldn’t find it necessary to seek the counsel of lawyers, nor would lawyers find it necessary to go to law school; in fact, there would hardly be any need for a legal profession. Is it even conceivable that there could be a legal system in which the meaning of all laws is perfectly clear? Perhaps in some impossible utopia; but in the real world of Anglo-American law, for the past eight or nine hundred years, we have never come close to this ideal.
 
The result of this principle combined with this fact is this: When a judge decides a case in which the meaning of the law is not perfectly clear, the judge “makes” law. The question, then, should not be whether judges should legislate from the bench — for inevitably they will so legislate. The real question should be: “When legislating from the bench, what principle of interpretation should guide the judge in his or her law-making?”
 
 
It is when you ask this question that you see the real difference between political liberals and political conservatives, especially when it comes to instances in which the Supreme Court construes the Constitution. Conservatives hold that the Court should be guided by the intention of the people who made the Constitution. For instance, there is not the slightest reason to believe that the authors of the Constitution ever intended to write into it a right to abortion; nor is there any reason to believe that they intended to abolish the death penalty. Therefore, abortion is not protected by the Constitution, nor is capital punishment forbidden.
 
Liberals, who wish to use the Constitution to protect abortion and to prohibit the death penalty, therefore have to find some principle of interpretation other than the principle of original intention. They have found various alternative principles, sometimes combining two or more. Their favorite has been what may be called the Implication Principle. They grant, for example, that the makers of the Constitution never dreamt of legalizing abortion; but the makers embraced certain abstract principles XYZ, which, if carried out to their logical conclusion, imply (so it is argued, somewhat dubiously) a right to abortion.
 
There is also the Well-Being Principle: American society will be better off if the Constitution is construed this way instead of that. Then there is the Public Opinion Principle: The average American would like the Court to reach a particular practical conclusion, and the Court can do this by reading the Constitution one way instead of another. Looming on the liberal horizon is the International Principle (really the European Union Principle): American understandings of human rights must keep step with European understandings.
 
I myself prefer the conservative principle of original intention. Why? Because one of the easiest parts of the Constitution for a layman (like myself) to read and understand is Article V, the part relating to constitutional amendments. It is, I think, perfectly clear that the Constitution is not to be amended except as the result of a great supermajority (two-thirds of each house of Congress plus three-fourths of all the states).
 
But when the Supreme Court declares, as it has done, that abortion and sodomy are constitutionally protected rights; or when it rules, as it may do in the future, that the death penalty is unconstitutional — then it is, in effect, amending the Constitution without going through the trouble of the supermajority process. That’s not playing by the rules we all agree to when we accept the Constitution as the great law of the land. (Let me add that, personally, I am against the death penalty and think there should be no laws criminalizing adult sodomy. Nonetheless, I think it preposterous to contend that the Constitution mandates my preferences.)
 
This is my chief grievance against today’s political liberals: They cheat. They don’t play by the rules of our social compact  — the Constitution. To achieve their goals, they want the Court to amend the Constitution in a way clearly prohibited by the Constitution.
 


David R. Carlin, a former Democratic majority leader of the Rhode Island Senate, is the author of
Can a Catholic Be a Democrat?

By

David R. Carlin Jr. is a politician and sociologist who served as a Democratic majority leader of the Rhode Island Senate. His books include "Can a Catholic Be a Democrat?: How the Party I Loved Became the Enemy of My Religion" and "The Decline and Fall of the Catholic Church in America." Carlin is a current professor of sociology and philosophy at the Community College of Rhode Island at Newport.

  • R.C.

    The non-strict-constructionist (or, more precisely, the non-framer’s-intent) view is dishonest.

    The same is true, incidentally, of Biblical interpretation.

    Example: Homosexuals who wish to construe gay sex as compatible with Christian morality are keen to theorize about David’s relationship with Jonathan, and of course about “the disciple Jesus loved.”

    It probably isn’t fair (but that doesn’t make it false): Those who’d take those kinds of liberties with the original intent of the human authors of the Bible, are generally the same ones who take the same kinds of liberties with the original intent of the Constitution (or their political allies).

  • mark

    I once browsed a book entitled “Liberalism is a Sin”
    by an Italian monsignior. There is a liberalism that
    claims we cannot understand the intention behind God’s
    laws. You see it in action in our world and in various
    levels of society and government.

  • Analyst

    That the most activist Supreme Court in the history of the United States was Rehnquist’s is thoroughly documented. His SC practiced conservative activism that far out-performed any other SC’s activism.

    The Roberts Supreme Court is giving the Rehnquist Supreme Court a run for its conservative activism money.

  • Jason Negri

    That the most activist Supreme Court in the history of the United States was Rehnquist’s is thoroughly documented. His SC practiced conservative activism that far out-performed any other SC’s activism.

    The Roberts Supreme Court is giving the Rehnquist Supreme Court a run for its conservative activism money.

    Analyst – please cite your sources for these propositions.

  • Veritas

    That the most activist Supreme Court in the history of the United States was Rehnquist’s is thoroughly documented. His SC practiced conservative activism that far out-performed any other SC’s activism.

    The Roberts Supreme Court is giving the Rehnquist Supreme Court a run for its conservative activism money.

    Analyst – please cite your sources for these propositions.

    Negri–How about you ask Carlin to “please cite your sources,” since Carlin is the only one making unsubstantiated, stereotypically outrageous claims.

  • Jason Negri

    Veritas-

    No thanks – Carlin’s position didn’t implicate specific jurists or a specific Court – he just talked in principles. I didn’t see anything he wrote as being “stereotypically outrageous”.

    So I’ll just ask you (again). Upon what do you base your assertion that the Rehnquist Court was “the most activist” in our history? You say it’s well-documented – I’d like to read about that.

  • Rich

    I am pro life, and a Catholic, but I fail to see what the problem is here. If the constitution can be amended, why has it not happened? Really now, why?

    It seems to me that we can blame the media, the liberals, the “powers” that be all we like, but if we the people want something changed, we can change it.

    Complaining about activist judges is pointless in my opinion, because it only stands to reason that the populace would change things if they grew in agreement about changing things. Sure, there are efforts that start things rolling, but eventually we get amendments.

    It seems to me that America is NOT a Christian nation. If the populace WANTED to overturn Roe, they would have. All the lamenting that goes on about activist judges fails to see that we are post Christian in America, and Christians are the minority in this populace.

    So, get to work on the amendments you want, drum up the support and make it happen.

    Or…realize that a pluralistic society exists and try to do the good you can from within that framework. This is what I try to do everyday.

  • R.C.

    Rich:

    I’m not sure you correctly followed the gist of the original post.

    The complaint is that amending the U.S. Constitution should require agreement from “two thirds of both houses,” “three fourths of the several states,” et cetera as required by Article V…but in practice this requirement is sidestepped by left-leaning jurists, who implement de facto amendments at will through dishonest and anachronistic interpretations of the law.

    Since this requirement is sidestepped mostly or solely by left-leaning jurists, it represents a double standard which subverts, rather than implementing, the law enacted by “We The People.”

    It is true, of course, that if all citizens of the U.S. were angels of God then amendments and such would be easily passed. But, then, if all the citizens of the U.S. were angels of God, there’d be no purpose in having laws, police, et cetera at all.

    But this is a fallen world with fallen human beings. In such a world, the double-standard is dangerous. It undermines the rule of law. The rule of law persists in the U.S. largely because conservatives are so wedded to framer’s intent (and why not? that intent supports their agenda) that right-leaning jurists cannot, as a practical matter, use the same judicial tactics as left-liberal jurists.

    Should the day come that right and left both say, “This law means not what its author intended, but what I can twist it to mean after-the-fact,” and truly pursue such tactics in endless escalation, the rule of law will collapse entirely: Whoever is in power will unwrite whatever existing law might have limited the scope of their power. At that point, there will no longer be any compelling reason to honor the tradition of bloodless transitions of government.

    Speaking less speculatively, the double-standard of interpretation it is the reason why abortion is legal in the United States; it is the reason pornography cannot be effectively limited or outlawed by communities; it is the reason the Federal government has such vast power to interfere in so many facets of life under the guise of “interstate commerce”; it is the reason your children or grandchildren will need in conversation to specify that their spouse is someone of the opposite gender than they, and follow every demurral of a same-gendered marriage with the obligatory “not that there’s anything wrong with that,” lest they risk arrest or censure. (I anticipate usage passing to acronym, NTTAWWT, much as “peace be upon him” has become PBUH for Muslims mentioning the name of Islam’s founder.)

    So, sure: It’s not a Christian nation in any orthodox sense; it barely remains a Theist nation except by the most generous definitions.

    But that’s beside the point. The Left ought (this is a moral statement I am making) to either submit to the traditionalist-friendly reality of the intended meaning of the Constitution, or else amend it, if they can, through the specified amendment process (which has, after all, been used before!).

    But this approach is too much work, so they eschew it in favor of “living Constitution” interpretation.

    And that is vastly dishonest. The “living Constitution” view of jurisprudence is as much a lie from the Father of Lies as those anachronistic readings of Scripture which make gay lovers of the Apostle John and the Christ. The text either means what its authors intended it to mean, or it has no meaning.

  • Rich

    R.C.

    You assume I did not understand the point of the OP, and that is untrue.

    Also, I do not agree with, nor move from a standpoint that there are “left” and “right” leaning people. There are just people. I am finding these characterizations far less useful the more they are used. In fact, the polarization is far from helpful, as MANY very good are vilified, demonized even, or at least ignored, and that is a poverty.

    Many probably consider me a left leaner, but I am very conservative on any number of issues, while quite liberal on others. I am a person with ideas, not a thing to be categorized.

    Jurists are people as well, and I enjoin you, R.C. to please point me to any chart that shows me every decision by every judge on the supreme court that then gives evidence that these are “mostly or solely by left leaning jurists.”

    The article above points out that law cannot presume to handle EVERY situation that might fall under a specific statute, so judges inerpret law. When the Supreme Court needs to look at a specific case, not dealt with precisely in the law or the Constitution, the judges are creating law. This would be your left AND RIGHT leaning judges. How in the world can it be that most or only your “left” leaning judges are the ones who do this?

    My point is that bemoaning the realities we face does little good. Jesus himself did not set about in any political way to change the landscape as it appeared in his day. And yet, so many here on this and other blogs would like to see Christianity almost as much as muslims seem to desire Sharia.

    Jesus simply loved others in the midst of the Roman Empire and put away the idea of being an earthly king, something he certainly could have accomplished He showed us one way he chose to put this aside by fulfilling Zecharia’s prophecy (which he most certainly had read)…by riding into Jerusalem on an ass. A political statement? Sure. Was it to make new law and change that empire within that legal framework? No.

    I am not saying we should not be political, I am not. What I am saying is that we should pick our battles better. Jesus did, we can too.

  • R.C.

    Rich:

    My apologies; something in the way your original note was phrased caused me to misunderstand you — in such a way as to think that you were off-topic from, or misunderstanding, the original piece.

    I’m sorry that I don’t have enough time now to really reply to you at the moment; your note deserves reply.

    For the moment, let me say just this: Sure, “left” and “right” are bad descriptors; sure, in the end they’re “just people” and, more importantly, those usually categorized as “left” or “right” will nevertheless vary from the norms of “lefthood” and “righthood” …if such can even be defined without serious argument, which is itself dubious!

    That said, I went ahead and used the terms in my previous note. Why? Well, to save time and make readable a note which might otherwise have been unreadable because of the qualifications necessary to indicate particular groups of judges. In the end, although “right” and “left” are horribly problematic terms, I was pretty sure that they would allow most readers would have at least a vague sense of the judges to whom I was referring.

    I’ll have to respond to the rest of your note later; thanks for your patience.

  • R.C.

    Rich, I owed you a fuller reply. I am still pinched for time, but here is some of it:

    …the polarization [of “left vs. right” labeling] is far from helpful, as MANY very good are vilified, demonized even, or at least ignored, and that is a poverty.

    You have my complete agreement on that point, sir. To it, I only add what I regard still more important:

    That good men are vilified or ignored because they fall under the heading “leftist” or “neocon” or some other similar category, is bad.

    But that their thoughts and arguments are vilified or ignored because these thoughts and arguments emerge from mouths and pens already labeled as “left” or “right” is worse. Truth is truth even when the speaker wears a wry face, and all truth is God’s truth.

    Many probably consider me a left leaner, but I am very conservative on any number of issues…I am a person with ideas, not a thing to be categorized.

    Entirely so, and yet, one must communicate. In doing so we must use adjectives, even when describing people. There is no malice in calling a man’s views “mostly left-of-center” or “mostly right-of-center” if some description must be offered, and if there is no time to give them in excruciating detail!

    And we must grant that there are some (like you yourself, apparently) whose views are not so easily categorized because some line up nicely with Pelosi et alia, while others line up nicely with Gingrich & Company. Well then: If the occasion calls that such views be described, and time does not permit each view be enumerated and explicated, what else can we do but say, “This man’s views are idosyncratic, seeming left-of-center on some topics, and right-of-center on others?” I see no malice in such a description, and though there is vagueness, it is out of necessity. We should always tell the truth and we should always say nothing but the truth…but no one has the time to always hear all the truth in all its glorious intricacy!

    You go on to note that “Jurists are people as well,” to which the proper answer is, “of course”: And in speaking of them, it is still sometimes necessary to use adjectives. But you go on to challenge:

    I enjoin you, R.C. to please point me to any chart that shows me every decision by every judge on the supreme court that then gives evidence that these are “mostly or solely by left leaning jurists.”

    This sets me a very high bar indeed! …and I guess the implication is that if I can’t clear that bar, my entire argument about the dishonesty of anachronistic readings of the Constitution is demonstrated to be false.

    Now that the implication is stated clearly, I suppose it’s equally clear that, whether or not my argument is false, the implication is fallacious? (I’m not sure whether it’s an example of “begging the question” or a very indirectly stated “No True Scotsman” fallacy. I’d need to spend some more time at logicalfallacies.info to puzzle it out.)

    I will set a different bar, not because I want to set it higher or lower than yours, but because I want it to be relevant. For much of the make-work involved in your challenge would be irrelevant to my argument.

    To create a relevant test for my argument, one must begin by examining all the cases decided by the Supreme Court, and then narrowing one’s examination through successively more selective criteria, as follows:

    (1.) Over the past century, which cases resulted in a decision under which the Constitution was found either to “require” something never seen by previous generations to be Constitutionally required, or to “permit” something never seen by previous generations to be Constitutionally permitted?

    (2.) For each case where such a reversal occurred, is there a distinct and strong difference of opinion about the desirability of the aftermath?

    (3.) For each case involving a reversal, where such a strong difference of opinion exists, does the strong difference of opinion mostly fall along usual “left”/”right” lines, as those lines are popularly understood by those interested in such distinctions (i.e., politics junkies and wonks)?

    (4.) For each case involving a reversal, where there was a strong left/right disagreement about the desirability of the outcome, can a reasonable man conclude on the basis of cultural evidence or direct quotations that the authors of the Constitution would never have envisioned their words being interpreted in such a way?

    Now comes the real test:

    …continued….

  • R.C.

    …continuing….

    Having narrowed our examination down to only the cases involving a reversal, where there was a strong left/right disagreement about the desirability of the outcome, and where a reasonable man would conclude that the authors of the Constitution never envisioned such an outcome, I submit that a large majority, of these decisions were applauded by the political left, and decried by the political right (with the opinions of those who aren’t so easily classified, like yourself, being unpredictable).

    If the preceding assertion is shown to be false, then I am wrong; if it is shown to be correct, then I am vindicated.

    To aid my vindication, I offer the following items:
    (a.) The protection of pornography under the First Amendment;
    (b.) The striking down of sodomy laws on the basis of a right to privacy emanating from the Constitution;
    (c.) The establishment of a woman’s “right” to abort her baby on the same basis;
    (d.) The expansion of Federal authority into realms previously thought to be the provinces of State law (e.g. the establishment of firearms-prohibition zones around schools) on the basis of the Commerce clause;
    (e.) The prohibition of staff-led prayers in public schools on First Amendment grounds;
    (f.) The prohibition by state supreme courts of private and parochial schools’ inclusion in voucher systems under the First and Fourteenth Amendments of the U.S.Constitution, on the basis of church/state separation and incorporation. (Which is why I include it even though it’s a matter of state supreme courts.)

    Now in each of the preceding instances, the applause for the result comes from those normally associated with political left (with exceptions, but too few to make the generalization invalid), and dismay at the result comes from those normally associated with political right (with exceptions, but too few to make the generalization invalid).

    And in each of those instances, no historian, or even reasonable layperson acquainted with the culture and practices of the Founding Fathers, would deny that the authors of the U.S. Constitution would have been surprised, not to say shocked and dismayed, at the outcome.

    In fact, this seems to me so self-evident that, were I to back it up with examples, I have no idea where I’d begin.

    So I’ll leave it at that, and it is up to you to challenge the validity of the test, or the outcome of the test, should you wish to do so.

    …continued…

  • R.C.

    …continuing…

    Rich, you go on to say:

    The article above points out that law cannot presume to handle EVERY situation that might fall under a specific statute, so judges interpret law.

    Naturally. That is not in dispute.

    My assertion is that when interpreting the law, one is morally required to interpret, so far as is possible, according to the intentions of the authors of that law, “breaking the tie” on uncertain points according to the intentions (if known) of those enacting the law and the persons they represent, or by strict construction of the terms using definitions generally agreed upon at the time of enactment, if all else fails.

    The alternative is to divorce the words of law from the intentions of the authors, and interpret them using such other definitions as are convenient to make the law require or prohibit things other than its authors would have wished required or prohibited.

    It may be true that this procedure has been used before by persons right-of-center in American politics! …but that politicians can be hypocrites is not in dispute, and it remains true that such phrases as “framer’s intent” and “strict constructionist” are what the political right in the U.S. longs for in SCOTUS justices, and lauds in its nominees, while such phrases as “living document” and “the needs of our era” are hallmarks of the left and its nominees.

    When the Supreme Court needs to look at a specific case, not dealt with precisely in the law or the Constitution, the judges are creating law.

    Not necessarily. They can respond in that way. But the alternative is to say, “We have no guidance in the U.S. Constitution regarding these matters; we therefore return the matter to the several States.” As a matter of record, they have done so many times; moreover, they often refuse to hear such cases at all, in which case the ruling of the next-highest court of appeals, or the state supreme court, stands.

    This would be your left AND RIGHT leaning judges. How in the world can it be that most or only your “left” leaning judges are the ones who do this?

    See my previous statement regarding the proper test of my argument. I assert that, in cases reversing previous practice, where sharp left-right disagreement exists about the desirability of the outcome, the right are routinely disappointed and the left routinely pleased, and that the authors of the relevant clauses in the U.S. Constitution, were they brought forward in time to see the outcome, would be disturbed or disgusted.

    My point is that bemoaning the realities we face does little good.

    Ah, well, that is an entirely different point, and not entirely on-topic. And for what it’s worth, I agree with you.

    All the same, it does some good, however “little,” if, by decrying an example of dishonest interpretation of the words of our forebears, I encourage any reader to interpret them honestly in the future.

    Jesus himself did not set about in any political way to change the landscape as it appeared in his day.

    True, but He had a different vocation; namely, to be the Savior of the World. We each, when living out our vocations under limitations of finite time and energy, are prohibited from some activities which we might have exercised had we not been attending to more important things!

    But you and I and readers of this website are not under the burden of being Savior! Some of us may be jurists or opinion columnists or public persons, and most of us are U.S. citizens and voters.

    So, for such as us, this conversation is not inappropriate.

    I am not saying we should not be political… What I am saying is that we should pick our battles better.

    Very well. But the electrons I’ve spent on these posts are not, I think, altogether wasted. And they’re quite inexpensive.

    And the only battle I’ve picked here is one which, I hope, is easily won with most readers: “It’s wrong to willfully construe the words of others dishonestly, even if those others happen to be Founding Fathers.” If I’m to pick my battles selectively, I hope all of them will be so straightforward!

  • Michael

    I always find it challenging to presume to KNOW another person’s intent. As people, we tend to apply our beliefs, philosophies, perceptions, and a host of other individual convictions when we interpret the intent of others. It’s impossible to know with exact certainty what the intent of the framers was. We can only be guided by the words they used – and our interpretation of those words. In the historical context, the framers really meant that men (and only land-owning men) were created equal. I would like to think that if the framers were alive today, the language of the Constitution would be more encompassing – or perhaps more exact.

    Now, for legislating from the bench. I still have not seen a specific example where the judiciary has actually legislated (and here, I’m using the term to mean “create law) from the bench. Sure, the interpretations of the law — indeed they are called opinions — can result in a review of the law. But I’m hard pressed to find one concrete example of specific legislation, a new law, that has been enacted from the bench.

    Help me, please, find one example of true legislation from the bench.

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