Friday, December 29, 2006
Fellow Liberals: Be a "Legal Formalist," Join the Recovering Realists Club (Small Meetings Likely)
Anyone who boldly proclaims to be a “legal formalist” today can be dismissed as naïve or deluded, or as an old fogey who slept through the last century of jurisprudence. Right? We are all Legal Realists now, and the Realists buried legal formalism.
somehow i imagine judges are trapped in a game with their colleagues. to get appointed and confirmed they must salute legal formalism and they would be fine restricting their decisions to simply applying the law. however, the 'other guy' might be able to squeeze in a conservative decision under the guise of legal formalism. then the liberal judge has three options: she can call the 'other guy' out and thus engage in a war of (nuh-uh, yeah-huh, nuh-uh); she can meet the 'other guy' at the nash equilibrium by saying that she's a legal formalist and then trying to squeeze out her own liberal opinion, but that is admittedly more difficult for a liberal to do given the current political climate in the States; or she can claim the game is up by saying that we are all legal realists now.
when you consider a judge's actions in light of her environment jurisprudential allegiance seems more like a strategy than a work ethic.
This reminds me of parallel debates in philosophy & elsewhere.
Consider Richard Rorty's "pragmatic" argument that opposes the stuffy, "the truth is out there" metaphysician to the hip, postmodern ironist, with the ironist of course winning the day.
One problem (of many) with Rorty's argument is this: might it not be pragmatically advantageous to behave *as if* the metaphysician were right?
Similarly, whether or not legal formalism is metaphysically correct, there are pragmatic arguments in its favor, ably put forth by Prof. Tamanaha.
Professor Solum does not appear to be a true legal formalist. Rather, by promoting stare decisis over the original meaning of the Constitution, Solum is arguing to make permanent past Court decisions rewriting the Constitution in a most non-formalistic and political manner. This is the Sandra Day O'Connor approach. A true formalist would say that the original meaning of the Constitution trumps all other law, even that created by a prior Court.
I do not know Solum's political beliefs, but his suggested neo-formalism would have the effects of erecting a firewall to preserve past liberal political decisions against erosion by today's far more conservative courts and perhaps also to allow liberals to dress themselves in the zebra clothing of umpires so that the "pablum" consuming public will accept them as qualified judges.
Solum’s formalism avoids the obvious flaws of original meaning theory (specifically: its dependence upon historical questions that cannot be conclusively resolved by historians (much less judges), problems with applying centuries-old meanings to present situations, and the fact that a great deal of modern legislation and precedent would be hard to square with old understandings), and avoids its built-in conservative bent.
Are these flaws truly present in original meaning jurisprudence?
Historical research should be generally limited to determining the commonly held meanings of the words and phrases used in the text of the Constitution and related law at the time of the ratification of the governing document. This approach is hardly alien to courts which determine the meaning of contracts. The diverging historical viewpoint problems generally arise when attempting to determine the original intent of the drafters or ratifiers of the Constitution.
In cases where the Constitution is silent about a novel modern issue, then the proper course should be to defer to the political branches. Those who wish to rewrite the Constitution to compel a desired outcome on a novel issue should use the amendment process and not a politicized judiciary.
Finally, if the Constitution is to have any real meaning, it must take precedence over past Court decisions which either erroneously or intentionally misinterpreted the original meaning of the document.
The alternative is the O'Connor approach, which essentially admits that a past political decision like Roe was wrong as a matter of constitutional law, but then proceeds to uphold the political decision to avoid upsetting the status quo.
The Constitution is a contract between the government and the people setting forth the limited powers of the former and the rights of the latter. As with any other contract, if the courts can rewrite the terms of the document at will and be upheld in that effort, then the contract becomes a nullity.
The hermeneutical circle can be quite dizzying as one evaluates arguments and at the same time addresses one's own "pre-judgments" (i.e., prejudices, in a purer sense) in an effort to render a proper decision based upon the law, as the law is interpreted (in varying manners) and applied.
By the way, is original intent, meaning, understanding, whatever, easier to determine closer in time to adoption/ratification than a century or more later in time?
"Bart" DePalma says:
A true formalist would say that the original meaning of the Constitution trumps all other law, even that created by a prior Court.
"Bart" makes an assumption here. "Begging the question. "Bart" assumes that there is a definite, unambiguous "original meaning" of the Constitution. The idea of discarding stare decisis as a tool is an unworkable one, with pragmatic reasons arguing against doing so as well as theoretical ones (it was hardly an unknown practise at the time of the writing of the Constitution, and common law was adopted explicitly by many states at the time). But "Bart" wants to chuck the baby out with the bathwater because he doesn't like the way certain courts have ruled.
Of course, "Bart" is a fan of Antonin Scalia, who is of the considered opinion that the Eleventh Amendment says precisely what it explicitly does not say ... so I doubt we can assume that "Bart" is arguing from any principles whatsoever.
"Bart" DePalma thinks that legislatures should decide court cases:
In cases where the Constitution is silent about a novel modern issue, then the proper course should be to defer to the political branches.
The difficulties are obvious. But "Bart" isn't concerned with reality; he's concerned with the "results" he is most inflamed by^H^H^H^H^H^H^H^H^H^H^H interested in ....
"Anyone who boldly proclaims to be a “legal formalist” today can be dismissed as naïve or deluded, or as an old fogey who slept through the last century of jurisprudence. Right? We are all Legal Realists now, and the Realists buried legal formalism. "
In what circles must one be embarrassed to be a legal formalist? Practicing lawyers and judges tend to be formalists. The only place where "realists" abound is in ivory towers, as I understand it. Perhaps one must tread carefully when talking in those circles, but I don't think there is any need to embarrased by espousing the same view that the people who actually practice and make law espouse. If anything, I'd be embarrased to be a Realist.
"These respective statements by Roberts and Alito were dismissed by many jurisprudential sophisticates, many legal academics, and many (many!) liberals, as pablum for public consumption, not to be taken seriously by anyone in the know."
I can't help but think that such skepticism is simply a product of externalizing one's own views onto others. People who ignore precedents/text/etc. will be skeptical that anyone else actually pays attention to the law.
Of course, this will never convince the Realists, but I actually do think that there are some out there (including me) who are so completely geeky that we care more about legal process & procedure than about substantive results. The integrity of the legal system is more important to me than a ruling in any single case. Admittedly, I'd abandon formalism in truly exceptional cases, but i think that 99.9% of the time-- and even in the "hard" cases that are decided in the appellate courts and the supreme court -- i would tend to find an answer that is compelled by a "formal" reading of the law.
The law is of course, at times, indeterminate, but it becomes less so when one adopts a consistent interpretive approach.
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