2018-07-11

Law as Custom vs textualism

Politico offers us various interpretations of Kavanaugh. Of interest is his "textualism and originalism", a concept that I tend to favour, though with caveats as this post will make clear. There's also a note about "a healthy skepticism of judicial deference to the administrative state", cue musing about the Deep State, but that's just a note to remind me for another day.

I find comments like "law is the end product of politics, not a continuation thereof, and the judiciary's duty is to enforce the laws (including the Constitution) as written". Or in K's own words "A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent".

The idea that one could source law from close reading of the original documents, and the problems of interpreting them, is familiar enough, whether you agree with it or not. But how does this fit into the "law as custom" framework?

The English common-law tradition, as expounded by say Hayek, is not that judges made law, but that they found it. The above, incorrectly I think, ignores that tradition by offering only a choice of making or interpreting. So that's a mark against K.

Consider, for example, the glorious Declaration of Independence, and the ringing words We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. Splendid words, and you can't remove their legal weight by asserting that they aren't formally part of the law. How do you reconcile them with slavery? You can't, obviously. At least, not honestly. You have to look the other way, evade them, or find some other hocus-pocus. But when the DofI was written, slave-owning was customary - at least in certain parts - and so that was the law, no matter what the bits of paper said. That, in turn, points to the need to adapt law to the customs of the times, and not be too hide-bound by niggly words1.

Refs


The Armalite and the ballot box
SCOTUS-pocus
Evasive Entrepreneurialism and Technological Civil Disobedience: Basic Definitions
SCHNARE SNARED IN TANGLED TULSA WEB
Judges in the U.S. are Supposed to Enforce the Constitution - CH
* Volokh

Notes


1. You might be tempted to assert that abiding strictly by the niggly words is therefore a good idea, because if only the judges had abode by the niggly words, then all those slaves would have been freed. But you'd be wrong.

2 comments:

Everett F Sargent said...

Consider, for example, that the USAniacs is rather totally fucked up, the SCOTUS is its own politically appointed body, the POTUS is an overripe baby melonhead and the LOTUS can't pass meaningful legislation (that tax cut bill was a dozy of misdirection, steel from the poor to make the rich richer), continuing trillion dollar deficits ...

But we're sending over some of our finest Aryan snipers to shoot down that Baby Trump blimp.

Make Aryans Great Again!
Make Authoritarians Great Again!

The Federal Security Service of the Russian Federation will be spying and taking incriminating pictures of Mangoman sucking short stack Putin's cock (after Mangoman gets his golden shower of course).

Everett F Sargent said...

Trump the Chump doesn't even realize that the Russians will have a full recording of their 'so called' private one-on-one meeting.

Putin's Piss Puppet.

Make Airheads Great Again!