Monday, April 11, 2005
the assault of the judiciary
i have no idea what kennedy might have done more than ruth bader-ginsburg to so outrage the militant-conservative wing of the american right. but it's hard to expect rationality from the lot -- the horror of an "activist judiciary" is largely a deception of the fearful, angry and gullible conservatives in our society, after all. placing blame on the judiciary for doing its job -- applying idealistic laws to pragmatic situations with intelligence and compassion, not to mention checking the wild majoritarianism of the congress and the administration -- isn't a completely rational exercize to start with. this is well articulated by g.a. cohen in his "rescuing justice from constructivism":
[W]hile justice... must of course influence the selection of regulating principles, factual contingencies that determine how justice is to be applied, or that make justice infeasible, and values and principles that call for a compromise with justice, also have a role to play in generating the principles that regulate social life, and legislators, whether flesh-and-blood or hypothetical, would be profoundly mistaken to ignore those further considerations.and that is exactly what constitutional constructivism/originalism means: refusing to recognize or compromise idealistic legislation with real situations. at the core of constructivism is a need to remove any independent authority from the judiciary which might lead it to contravene moral principles -- which, ostensibly, are legislated by congress -- in applying justice. what constructivism calls for, then, is the fact-insensitive application of principle. (remind you of anything?) it is thereby a pathway to militancy, as are most kinds of fundamentalism.
the question to be posed to constructivism is here: can the denial of particularity yield virtuous justice in application? i think not.
but it would be wrong to think that the movement, however philosophically baseless, is powerless. indeed, the campaign to reduce the judiciary to ineffectiveness is highly placed within the judiciary itself. and the conference's list of speakers included house speaker tom delay, commentator phyllis schlafly, alabama state supreme court justice tom parker and more.
this mass would -- in the name of law, with high irony -- unwittingly destroy the rule of law in the united states by robbing the judiciary of its independence from the will of the people and forcing it to yield to majoritarian moral concerns, subjecting the bill of rights and the constitution itself to essentially democratic votes. this is not the rule of law.