What distinguishes the rule of law from the rule of men is that the former contains limiting principles, which sharply and fundamentally limit the ability of men to decide the law as they see fit. Limiting principles are what remove arbitrariness and caprice from the law.
The recent spate of nationwide injunctions and Temporary Restraining Orders (TROs) by district court judges against President Trump are strikingly devoid of either structural or doctrinal limiting principles, such as separation of powers (or a conception of it having any real bite) and the political-questions doctrine — the former being, along with federalism, the most important structural limiting principle in American law. The judiciary ought to bend over backwards to respect limiting principles, notably those structural ones which are implied by our Constitution and our republican form of government — not least because the power of judicial review is less implied by the Constitution than are the basic limiting principles of our governmental system, which, to repeat, are forms of a principle that is fundamental to the very existence of the rule of law.
The nationwide injunctions and TROs that have sprung recently from the brow of federal judges (who clearly enjoy being as imperious as Jove) are decidedly in conflict with the rule-of-law demand for limiting principles. What presidential action would these judges not see themselves fit to adjudicate, and indeed to proscribe as a matter of national policy?
However, the rogue judges didn’t come out of nowhere. I’m not referring to Soros-bucks and the like, but to something much deeper. This is that liberal jurisprudence itself, a.k.a. the “living Constitution,” is strikingly devoid of effective limiting principles.
As we consider this baleful fact about liberals and their ideas of judging, keep in mind that their side talks endlessly about their fealty to the rule of law. Rarely in our history has self-blindness reached such heights. Add self-righteousness to the mix, and the tragedy becomes a farce, with the audience lustily booing the comical unawareness of the rule-of-law-proclaiming actors on the stage.
Reading the Constitution. The subtitle is Why I Choose Pragmatism, Not Textualism. Breyer doesn’t mention the living Constitution, of which he is a prominent exemplar, nor does he mention limiting principles. But he does talk about constitutional purposes and “workability.” Unfortunately, no limiting principles are apparent in his legal pragmatism of purposes and workability.
This shouldn’t be surprising. That which you think makes something workable — constitutionally or otherwise — depends on what your values are. Breyer does talk about values, but not very illuminatingly. People have widely different values in a pluralistic society. Therefore “workability” generally (not inevitably) amounts to “preferred liberal outcome” — since the only people who valorize pragmatism are liberals. (The prominent legal pragmatist Richard Posner isn’t a conservative but a libertarian, which is to say a quasi-liberal.)
Conservatives tend to think that pragmatism should be employed, if needed, under the auspices of, or in light of, textualism and originalism — as the handmaiden, if you will, of originalism and textualism. (A comely handmaiden it was, too, in the hands of Justice Antonin Scalia.) They just don’t valorize or reify pragmatism and its cousin, “purposivism.”
Specifically, conservatives think that legal pragmatism must be understood in terms of the Framers’ values. The proper interpretive dialectic, as conservatives see it, is that the Framers’ purposes must be understood in terms of their values, and their values must be understood in terms of their intentions and the Constitution’s text. Liberals like Breyer make much of purposes, as distinguished from intentions and text, but the two are not really separable in that way.
Further, liberals, including Stephen Breyer, make much of values, and they claim that textualism/originalism ignores values, meaning contemporary or “evolved” values. But that isn’t a fair description of the conservative jurisprudential stance, which shares the natural law and Burkean view that values can evolve, or adapt to new social conditions, without fundamentally changing — e.g., while there is something to “love is love is love,” which contemporary society should maybe take account of, it cannot be something that redefines marriage. (So, yes, Obergefell v. Hodges should be overruled.)
In short, “values” cannot be rightly understood in terms of Whiggism. Whiggism is another thing Breyer doesn’t mention, but he’s basically subservient to it, as liberal intellectuals tend to be. Whiggism is the horse, and workability and purposes the cart of liberal jurisprudence. That’s no great surprise. After all, our beliefs about what is good or right determine what we think is the “best” outcome for society. Whereas conservative judges have limiting principles to constrain any decision-making based on their beliefs, liberal judges have relatively few constraints on their own beliefs because their limiting principles are sketchy or nonexistent. Whether because of the idea that ultimate values do not conflict, or because of the belief in human perfectibility, Whiggism (standing in for liberal jurisprudence) sees no profound need for limiting principles, or simply honors them in the breach.
It might even be said, without undue hyperbole, that liberals don’t really believe in the rule of law just as (for the most part) they don’t really believe in God.
Now return to the subject of nationwide injunctions and TROs. And take someone like Judge James Boasberg, a veritable pit bull when it comes to aiding violent migrant gangs. Ever since law school, this guy has evidently been hearing accolades to “the living Constitution.” All he knows is a dogmatic Whiggism, in which the idea of limiting principles is neither here nor there, if not gone with the wind. No wonder Judge Boasberg now embraces fundamentalist juristocracy and gives short shrift to the separation of powers, in deed if not in word. Liberals see him as a man of integrity doing what he must — namely, trying to slow Trump down, and ideally foiling the president’s plans entirely. Is he not a hero?
Short answer: no. Far from upholding the rule of law, Judge Boasberg is seriously weakening it.
The indiscriminate use of nationwide injunctions and TROs needs to be nipped in the bud. Moral courage for at least the six Republican members of the Supreme Court to do this can be found in the fact that robust limiting principles are built into the dominant conservative judicial tools of textualism and originalism, and that this, indeed, is a big part of what makes them superior to pragmatism, purposivism, and the “living Constitution” as tools of judicial interpretation. For starters: the phrase “predatory incursion” in the statute in question should be understood as independent of a state of war, since it does not presuppose intent (unlike the accompanying phrase “invasion”). A predatory incursion can be in effect, and not in intent. This favors Trump’s deportation of violent Venezuelans as a presumptive matter, since the balance of limiting principles is surely on Trump’s side.
Doing the right thing isn’t that hard.
Image: Simon and Schuster
Jesus Christ is King
Comments are closed.