Saturday, July 30, 2005

Great Letter to the WSJ

Today's print edition of the Wall Street Journal had an excellent letter from reader William M. Banta of Littleton, Colo. In fact we couldn't have said it better ourselves. Unfortunately, the online link to it requires a subscription. So under the doctrine of fair use, we reprint this small portion of the Letters to the Editor:
"Daniel Henninger's July 15 Wonder Land 'High Court 'Battle' Began Back in 1935' was a good one. While Sen. Chuck Schumer may feel a Supreme Court nominee's judicial philosophy is important, I wonder at the very idea of a 'judicial philosophy.' The law is written; the judge is to apply the law; the court is beholden to the Constitution -- where is there a place for philosophy?

It's the same with the senator's reference to 'the legal form of reasoning.' There is no such animal. Reasoning is reasoning just as logic is logic. If something is nonsense, putting it in a legal form or a judicial opinion won't improve it. Along that line, I would not give away the point that the Supreme Court's New Deal decisions or its civil rights decisions around 1965 were ever defensible on account of a 'legalistic social philosophy.' 'Legalistic social philosophy' sounds like the platform for judicial activism.

For one thing, civil rights decisions such as Brown v. Board of Education (1954) were not activist; the activist court opinions were the segregationist cases, e.g. Plessy v. Ferguson (1898), which squarely contradicted the 'equal protection' requirement of the Constitution. By comparison, the Brown decision and other civil-rights cases around 1965 upheld to the letter the 14th Amendment ('equal protection') and the 15th Amendment (the right to vote shall not be denied or abridged on account of race, color, or previous condition of servitude). Those civil-rights decisions followed the Constitution and are therefore correctly reasoned regardless of any gummy philosophy.

On the other hand, many New Deal decisions were activist in that they superimposed a politics upon the Constitution in what amounted to the Supreme Court's misguided role in an unsuccessful economic experiment to end the Depression. The methods employed by the beleaguered (FDR threatened to 'pack' the court if it wouldn't yield up the Constitution to his political demands) Supreme Court became less than scrupulous, which is probably why New Deal cases continue to require the smoke of philosophy even today in order to pass the 'huh?' test.

Note that Sen. Schumer's 'legalistic social philosophy' is likely what led to the Supreme Court allowing state and local governments to take your home and transfer it to private developers (Kelo v. New London) contrary to the Bill of Rights. Philosophy and politics are important to lawmaking; they have next to no place in deciding cases."
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