Wednesday, June 18, 2014

"Should Judges Be Patriotic?"

Mark Tushnet

Attending a workshop at the International Association of Constitutional Law's meeting in Oslo, I heard a lawyer from Hong Kong pose that question. He prefaced it with the observation that a large number of lawyers in Hong Kong plan to demonstrate on June 27 against a statement issued by the authorities in Beijing dealing with judges in Hong Kong, which, he said, effectively stated that judges there should indeed be patriotic toward the People's Republic of China, of which Kong Kong is a "Special Administrative Region."

I thought it was a terrific question. Stephen Ellman of New York Law School followed up with the observation that it is common in the United States for scholars to describe judges as involved in a collaborative enterprise of (good) governance with executives and legislators. He referred specifically to the Legal Process school of the 1950s and thereafter. But, I suspect that even people who reject Legal Process thinking in favor of, say, originalism would agree that judges' job includes (is?) contributing as best they can to a long-term project of governing a country well. (It's just that, to continue my example, originalists think that originalism is a better way to make that contribution than legal-process thinking,) So, in that sense, everyone thinks that judges should indeed be patriotic.

If the nation is one as to which patriotism is an appropriate stance, that is.

Yet, what are the chances that a national political system as which no one should be patriotic will allow its judges to be anything other than patriotic? (And, to be clear, I regard the identification of nations as to which patriotism is an appropriate stance as an open question -- open, that is, even to people who are citizens of the nation under consideration.)

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