Tuesday, August 22, 2006
Dicey Versus Posner On Ordinary Courts
Marty offers a detailed response to Judge Posner's WSJ Op-Ed piece below. I will focus on a very narrow point. Posner argues:
This reminds me of the recurrent criticism of jury trials based on the jurors' lack of expertise in the matters they are deciding. This criticism misses the crucial importance of juror independence. Although jurors surely bring their preconceptions and sometimes prejudices to the courtroom with them, they are not nearly as subject as judges to the pressure for conformity that affects "insider" decision-making. They also are more likely to start from a neutral viewpoint that is sometimes aspirational even for the best judges, let alone "experts." The more the controversy at issue implicates "values" as distinguished from technical knowledge, the more important the jurors' independence becomes.
These same attributes are more likely to be found among Article III judges chosen "at random" than among "expert" decision-makers, especially in cases in which national security collides with civil liberties -- a value-laden controversy if there ever was one. No surprise, then, that the suggestion for an expert tribunal comes in response to a decision upholding principles that some find anachronistic in the face of "today's global terrorism."
Is this the logic behind
the use of "regularly constituted" in common article 3 of the Geneva Conventions?
Pardon me for being a bit cynical, but this idea that ordinary judges are not capable of dealing with security cases is rather ridiculous.
First, they are perfectly well capable of deciding what the law says about security-related issues (if not more so than the maladministration's lawyers, for instance). As for technical matters, no one insists that judges be technical experts in other circumstances; they can listen to the testimony of the experts on matters of fact, and then decide the law.
Second, any idea that this maladministration is competent at security and intelligence matters is belied by its track record. Consider for a moment that Karl Rove still has a security clearance. Then look at what they did with the Iraq "intellignece". I'd say that any claims that we need to closely protect our methods (much less our policy decisions in the security arena) are put to the lie by the lousy record of the folks that are supposedly in charge of it. What can it hurt to have a judge look in?
The difficulty is that Dicey used "subject to resolution by an ordinary court" as the definition of "law." Constitutional questions, for Dicey, fell into two distinct categories: laws,so called "since they are rules which . . . are enforced by the Courts," and conventions, "understandings, habits, or practices which, thought they may regulate the conduct of the several members of the sovereign power . . . are not in reality laws at all since they are not enforced by the Courts." Most of the questions we consider constitutional, and all of those dealing with things like distributions of power, Dicey found to be conventions rather than laws. Speaking of an English constitutional lawyer, Dicey wrote: “His position is entirely different from that of his American rivals. He may search the statute-book from beginning to end, but he will find no enactment which purports to contain the articles of the constitution; he will not possess any test by which to discriminate laws which are constitutional or fundamental from ordinary enactments; he will discover that the very term ‘constitutional law’ . . . is of comparatively modern origin.” (Introduction to the Study of the Law of the Constitution (1908), pg. 6). So Dicey was not asserting that ordinary judges have competence to rule on questions of constitutional law, he was arguing that questions of law are those questions which ordinary judges are competent to rule upon, and important constitutional questions do not fall into that category.Post a Comment