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“…I find it rather regrettable that Lady Hale’s judgment makes so many references to defecation.”

said Lord Walker, a UK Supreme Court Justice in one, rather unfortunate case. However, we had better get used to Lady Hale’s judgments as she has now been nominated as the next President of the Supreme Court, a promotion from her position as Deputy President, and her influence on UK law will grow.

Why anyone should be concerned that a former academic lawyer with her track record should be in charge of a court that does not sit en banc is that she may well control the lists and influence which judges sit on particular cases, thereby having scope to shape the law.

She has long been a supporter of greater diversity in the judiciary.

“It may be a genuine occupational qualification to choose a black Othello or a female Desdemona, but could it be thought a genuine occupational qualification to bring a minority perspective to the business of judging in the higher courts?

“So do we need to revive the argument for some special provision, akin to that in Northern Ireland, to enable the appointing commissions to take racial or gender balance into account when making their appointments? Would that really be such a bad thing? I think not.”

But some might prefer to have judges who judge the case before them on the basis of applying the law, rather than their own perspective, if one hoped for the rule of law to be seen to be maintained.

Lady Hale has however, speaking privately, cast doubt on her own judgment in one case, a meagre consolation for the losing party.

The trouble with the UK’s Supreme Court is that it is really the result of a Lefty wet dream about judicial activism, finally in 2005 (wef 2009) destroying a long tradition (before then vandalised in the 1870s) of the UK’s final court* being a committee of the House of Lords. (* Not for Scots Criminal Law, which remains under the Scottish Court of Session).

The UK’s Supreme Court has been described by one of its justices as a political court, being politicised by its inevitable involvement in devolution issues and interpretation of Human Rights and EU law (as was, to be fair, the House of Lords before it).

I have a modest proposal, that the Supreme Court be abolished, saving taxpayers money and removing an avenue for more legal fees to be charged in pursuit of a result, thereby removing work and money from the legal profession and reducing litigation risk. There is a simple alternative, that should a party find that litigation results in an injustice, or a nonsense whereby different UK courts have different precedents to follow, that party could petition Parliament to change the law, even in respect of that particular case, as happened in the Burmah Oil case. This approach would have the advantage of getting our Parliamentarians to see the consequences of the laws that they pass (or do not pass) and also take up time that could be spent passing more unhelpful legislation.

To those who say that our politicians should not be our judges, I say ‘Better than our judges being our politicians.

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58 comments to “…I find it rather regrettable that Lady Hale’s judgment makes so many references to defecation.”

  • Paul Marks

    Mr Ed I fully support your proposal – if only the United Kingdom had a Conservative government (rather than “Progressive Lite” government), that would carry it out.

    Either judges should work their way up – in an ideal world from doing menial jobs as children, clearing the chambers of lawyers, filling the inc pots, and making sure the quills are well stocked (then going on to be lawyers themselves – without ever seeing the inside of a “university”). Or, if judges are to be politicians “representing the community” rather than people who worded their way up in the law, then ELECTED if they insist on playing politics.

    There is no place for Lady Hale in either system – most people would not vote for such an obviously smug P.C. person, and the lady would not work her way up in the court system arguing cases before a jury.

    No doubt this unelected “Supreme Court” person will go on to play politics with her judgements – rightfully earning herself the question “who elected you?”

    As for her own question – “would it be a bad thing”, of course it would be a bad thing.

    Lady Hale if you do not understand that appointing people on the basis of their race or their sex (in order to satisfy some demented cult of egalitarianism – obsessed with getting the “correct” proportion of X group into certain positions) then you have no place in the Common Law.

    But this is not a problem of one person, a system that would appoint such a person to this position is itself horribly ill – perhaps terminally ill.

  • I agree with Mr Ed. It is, as he says, a politicised court; the left see judging as politics by other means and Labour created the court in that spirit. It should never have existed and should be abolished. The good news is that parliament can do that. The bad news is that the current parliament won’t, barring some unlikely event. (And if it did, a merely nominal return to the prior system might be but a poor resource. Labour also messed up the House of Lords, etc.)

    As for the choice of Lady Hale:

    Lady Hale has however, speaking privately, cast doubt on her own judgment in one case, a meagre consolation for the losing party

    “meagre consolation” as you say, Mr Ed. One can only hope this diversity advocate is growing wiser (i.e. very slightly less foolish) as she grows older.

  • Mr Ed

    One can only hope this diversity advocate is growing wiser (i.e. very slightly less foolish) as she grows older.

    An alternative explanation, that she was rubbing the losing party’s nose in it, is unbearable.

  • Laird

    Paul M, if I understand correctly that you suggested that judges be elected, I would posit that you have never lived in a place with such a system. Trust me, it is the worst possible way of selecting judges.

    As to the problem of a politicized court, I offer you a statement by Judge Richard Posner of the US 7th Circuit Court of Appeals, an expert in the burgeoning field of “law and economics” and long viewed as being a “libertarian” jurist, in his latest book “The Federal Judiciary: Strengths and Weaknesses“:

    “My approach in judging a case is therefore not to worry initially about doctrine, precedent, and the other conventional materials of legal analysis, but instead to try to figure out the sensible solution to the problem or problems presented by the case. Once having found what I think is the sensible solution I ask whether it’s blocked by an authoritative precedent of the Supreme Court or by some other ukase that judges must obey. If it’s not blocked (usually it’s not—usually it can be got around by hook or by crook), I say fine—let’s go with the commonsense solution.”

    (This is from a sort of “meta-review” of his book posted by Johnathan Adler on the Volokh Conspiracy blog.)

    Personally, in my opinion anyone who truly believes that doesn’t belong on the bench.

  • bobby b

    “There is a simple alternative, that should a party find that litigation results in an injustice, or a nonsense whereby different UK courts have different precedents to follow, that party could petition Parliament to change the law, even in respect of that particular case . . .”

    Isn’t this already an option? It wouldn’t be in the USA – ex post facto and all that – but that’s allowed in the UK, I believe.

    ” . . . removing an avenue for more legal fees to be charged in pursuit of a result, thereby removing work and money from the legal profession . . .”

    Barbarian.

  • bobby b

    Laird
    July 22, 2017 at 10:28 pm

    “Paul M, if I understand correctly that you suggested that judges be elected, I would posit that you have never lived in a place with such a system. Trust me, it is the worst possible way of selecting judges.”

    We once had a candidate run for the bench whose platform was essentially that he was uncorrupted by knowledge of the law. He almost won. Several of the winners over the past decade have been just about as bad. The abilities and skills that make a good judge do not correlate with the abilities and skills that can run a strong election.

    “As to the problem of a politicized court, I offer you a statement by Judge Richard Posner of the US 7th Circuit Court of Appeals, an expert in the burgeoning field of “law and economics” and long viewed as being a “libertarian” jurist . . .”

    The only way I’d consider Posner to be a libertarian is that he considers himself to be liberated from that damned pesky Constitution. “The Founders left it all vague on purpose so that we could adapt its suggestions to a changing society . . .” He simply wants to be a ruler unconstrained by rules.

  • Laird

    That would appear to be the case, bobby b. I used to be sort of a fan of Judge Posner (because he brought a sensible understanding of economics to the law), but of late he does seem to have run off the rails. Of course, he’s still light years ahead of his idiot son Eric.

  • Lee Moore

    I agree with the general tone that Lady Hale is close to the bottom of the list of folk who ought to be allowed to sit atop the highest court in the land. However I may then diverge a bit from the general opinion.

    1. I think it’s valuable to have a Top Court to reconcile conflicting precedent.

    2. But the Top Court is inevitably a powerful beastie politically, and so as with all powerful beasties that need to exist, I’m for dividing its powers.

    3. I’d stick with a Supreme Court, but I’d make the following changes

    4. The Judicial Committee of the HoL abolished its old rule that its own precedents were binding on itself, a few years before it was itself abolished. I’d restore that rule. The Supreme Court should be bound by its own precedents. Breaking a precedent is effectively a retrospective change in the law. In the US because of the supermajority requirement for changing the Constitution there are special reasons why their Supreme Court shouldn’t be bound by its own precedents. In the UK, where it’s easy enough for Parliament to change the law, there’s no reason to allow the Supreme Court to change its own precedents.

    5. I would make the Supreme Court the final Court of Appeal for the trying of cases and controversies. Win there and you’ve won. Finish. BUT I would then allow appeals to be made to the Judicial Committee of the House of Lords, in specified circumstances, where either of the parties to the case, or a third party, was dissatisfied with the. precedent set by the Supreme Court judgement. Thus the Judicial Committee could overturn the Supreme Court’s precedent and set its own. Which would then be binding on both it, and the Supreme Court. In future cases.

    6. I think this would have a couple of benefits. First, the “legislative” function of setting supreme precedent would reside in the legislature, thereby trimming the power of the judiciary. Second, the Supreme Court would be more likely to behave, knowing that it couldn’t act as a super legislature and get away with it, and that it might be called to account for its judgements before a higher authority. Of course the political power is then transferred to the Judicial Committee, but it’s also weaker. First as a committee of the HoL, its membership is not unalterable – egregious politicking can be punished. Second, the Judicial Committtee would only get the opportunity to change the precedent for future battles. They would have no opportunity to affect the result of the current battle. Consequently I would expect intervention by the JC rather rarely, while its looming presence would act as a check on the Supreme Court.

    7. If it be objected that a Corbynite figure with a HoC majority could use his powers to pack the HoL and so pack the Judicial Committee….he could do that anyway. Once you’ve packed the HoL, and you have a HoC majority, you can change the law as you please without bothering with precedent. So I’ve done no additional harm by returning the legislative precedent power to the legislature. And I’ve done some good by reminding the Supreme Court judges that they do not have plenary power.

    8. For the avoidance of doubt, my sense of public service would require me to accept, if offered, the Chairmanship of the Judicial Committee, more or less indefinitely.

  • bobby b

    Lee Moore
    July 23, 2017 at 2:59 am

    “In the US because of the supermajority requirement for changing the Constitution there are special reasons why their Supreme Court shouldn’t be bound by its own precedents . . . “

    With these statements, you’ve just revealed yourself as a Living Constitutionalist, whom I have sworn to defeat in a duel with edged weapons. But you never struck me that way before.

    Do you really believe that the Supreme Court should be able to lightly discard past Courts’ decisions based on changes in society? I suppose it would make future legal education easier if we could simply discard both the Constitution and everything decided by earlier courts and just decide again – if we simply taught lawyers to “come up with today’s best outcome” – but that’s putting an awful lot of pressure on whoever makes up the current crop of lawyers representing the party in power. Isn’t one of the great qualities of our Constitution that fact that it has imposed immutable principles upon us that we can’t whimsically change?

    Laird
    July 23, 2017 at 2:54 am

    “Of course, he’s still light years ahead of his idiot son Eric.”

    Shining lights of intellect don’t reside at Kirkland and Ellis.

  • Fred Z

    I practised law for 30 years in one of the colonies.

    The proportions of stupid/not stupid, objective/subjective female lawyers and judges is bad. Very bad.

    Women are less suited to the law than men.

    Good goddam thing I’m anonymous, not?

  • Lee Moore

    Do you really believe that the Supreme Court should be able to lightly discard past Courts’ decisions based on changes in society?

    No. I think the US Supreme Court should be able to discard past SCOTUS precedents if the current Court considers, after much heavy thinking and with regret, that the precedent is not justifiable by reference to the original meaning of the text of the Constitution.

    This may be because the past precedent has been set using some other, less creditable, theory of interpretation – such as living constitutionalism; or because the old judges used the right club, but still put it in the bunker as a matter of textual analysis. Even honest judges can screw up. Nothing whatever to do with changes in society. Or consequences. Or inferred but unspoken purposes.

    “With regret” because any departure from precedent is a retrospective change in the law, and consequently an offence against the rule of law. Which is why in the British context I think precedent should be sacred. In the US case, where changing the Constitution requires a supermajority, I would make an exception to this rule. Precedents that are within the reach of ordinary legislation should be binding even on SCOTUS, but Constitutional precedents should not.

    I am quite willing to give up on cementing proper originalist or textualist precedents in place, protected by a supermajority; in return for the freedom to attack wicked living constitutionalist, consequentialist or purposive precedents. This is because proper originalist or textualist precedents cannot be cemented against wicked liberal Justices anyway. They’ll do what they like anyway, because that’s what their judicial philosophy allows them to do. So I give up nothing. I merely pick up my own edged weapon, seeing that the enemy already has his in his hand.

  • Mr Ed

    bobby b

    Isn’t this already an option? It wouldn’t be in the USA

    Indeed it is, but it requires a Private Bill before Parliament, which in the context of the current arrangements, is virtually impossible due to how Parliament is run, and the context of the finality of the Supreme Court (ignoring the European courts). The Burmah Oil case was a government reversing the law retrospectively as Parliament may do, unlike the Feds etc.

    Laird

    Trust me, it is the worst possible way of selecting judges.

    I’ll raise you the Supreme Court (TSJ) of Venezuela.

  • James Hargrave

    Hale is someone without even the sense to keep quiet – bizarre comments on the Brexit business shortly to become before them when talking at a law conference in Singapore was an indication. In otherwords, a CAUC (I believe this is the acronym).

    I can’t forgive these people for mangling the Middlesex Guildhall building and too many of them (admittedly a general failure of judges, even the lowly creatures we used to call Stipendiary Magistrates) believe that they have a direct line to God.

    I could never see why Bingham of Corncob was so well regarded – buried not far from here; I feel a need to relieve myself. And the beaming self-satisfaction of the first President of this excrescence… I am sure that Hale will be just as bad.

    Call a magistrate a judge – gives ’em ideas above their station. Call a provincial legislative assembly a parliament, ditto. Call a court ‘supreme’ and…

  • Lee Moore’s idea that we could separate the UK Supreme Court trying the case from the House of Lords committee confirming or nullifying any resulting precedent is interesting, and might well be better than the current situation. (Whether it would be better than the old situation from well before this recent court was created is another matter.)

    When a US Supreme Court ruling insolently nullifies the constitution, or insolently adds the PC cause-du-jour to it, allowing a future Supreme Court to nullify that absurdity and return to the constitution is one resource. The alternative would seem to be to have some means of declaring a ruling “insolent” (or some more neutral term), after which the constitutional amendment process would be begun, and the ruling vacated if it did not succeed in adding the ruling to the constitution as an amendment within some legitimate time. So I have sympathy with Lee Moore (July 23, 2017 at 4:39 am). Otherwise you have nothing but a ratchet: whenever a living constitutionalist majority is on the court, they win – they alter the constitution at pleasure; whenever an originalist majority is on the court, we lose – we cannot void a precedent to return to the constitution.

  • Fred Z (July 23, 2017 at 4:26 am), I have no doubt the quality of judges chosen because they are diverse is low relative to that of judges chosen because they are the best and most impartial at doing the job. That Lady Hale is both an advocate of and a beneficiary of the desire for more ‘diverse’ judges is loudly trumpeted by her partisans, not (or not only) her critics: “Diversity will no doubt be high on the selection panels’ agenda.”

    I have nothing like your decades of observation to advise me. I wonder how far either of us have enough data to form an opinion of female versus male judges as such, apart from this confounding factor.

  • The abilities and skills that make a good judge do not correlate with the abilities and skills that can run a strong election. (bobby b, July 23, 2017 at 12:23 am)

    Very true: the ideal executive, the best legislator and the most impartial judge are three different characters – and the character (or lack of character) that is best at winning elections overlaps none too well with the first two and even worse with the last. Burke said the judge should be the oldest of the three and should have amassed a reputation for disinterested character in earlier life – one that judge would be loathe to forfeit.

    Of course, as regards,

    it is the worst possible way of selecting judges

    Churchill’s dictum about democracy being the worst form of government – except for all the other forms that have been tried – can sometimes apply. (Or, as Mr Ed put it on July 23, 2017 at 6:14 am, “I’ll raise you the Supreme Court of Venezuela.”)

  • bobby b

    Niall Kilmartin (Stirling)
    July 23, 2017 at 1:30 pm

    “Otherwise you have nothing but a ratchet: whenever a living constitutionalist majority is on the court, they win – they alter the constitution at pleasure; whenever an originalist majority is on the court, we lose – we cannot void a precedent to return to the constitution.”

    With that scheme, Heller becomes the first casualty. Citizens United will follow quickly.

    I know plenty of people who believe that Heller insolently nullifies the Constitution, by rendering the “militia” language into “mere surplusage” (which the canons of statutory construction prohibit.)

    “Insolent” is in the eyes of the beholder, and within the definitional powers of whichever side holds power. We’ve managed, over these centuries, to keep the insolence whittled back by allowing the USSC, not to outright reverse precedent, but to limit it, to differentiate it, to narrow its scope to meaninglessness. This has worked well – unless you ask an opponent of Heller.

    Anything that allows us to fix the other sides’ errors allows them to fix ours. I fear that such a scheme merely hastens the day our Constitution becomes surplusage itself.

  • bobby b

    Lee Moore
    July 23, 2017 at 4:39 am

    “I think the US Supreme Court should be able to discard past SCOTUS precedents if the current Court considers, after much heavy thinking and with regret, that the precedent is not justifiable by reference to the original meaning of the text of the Constitution.”

    But we already allow that. See here – the list of about 130 USSC opinions overruled by later rulings. I’m just afraid your scheme makes it an easier, everyday, process.

  • Laird

    Mr Ed, the Supreme Court of Venezuela might be the nadir of judicial bodies, although the US Treasury Department news release you linked doesn’t speak to the method their selection, which is what I was addressing when denigrating popular election of judges. But that was an interesting link nonetheless. Personally, I have serious problems with the US deciding to impose sanctions on the top justices of another country’s Supreme Court, even if their actions have been unwise, antidemocratic, or even illegal (under any body of law: local, US, “international” (so-called); you choose). By what right does the US freeze the assets of such persons? It’s an issue for the Venezuelan people to resolve, not the US.

    Per the news release:

    “The Venezuelan people are suffering from a collapsing economy brought about by their government’s mismanagement and corruption. Members of the country’s Supreme Court of Justice have exacerbated the situation by consistently interfering with the legislative branch’s authority,” said Secretary of the Treasury Steven T. Mnuchin. “By imposing these targeted sanctions, the United States is supporting the Venezuelan people in their efforts to protect and advance democratic governance in their country.”

    Probably all true. But so what? Why is this our business? This is just more meddling in another country’s affairs (although at least we aren’t shooting anybody there; thank Julie’s Great Frog for small mercies). And we are in high dudgeon over Russia’s relatively benign “meddling” in our election? Talk about having a beam in our eye . . . .

  • Laird

    With regard to the (US) Supreme Court being bound by its own precedents, there is an interesting debate occurring about that right now. First, though, I want to stress that the Court does not “overrule the Constitution”, at least not overtly. It interprets the language (although often in an irrational manner); it draws distinctions, sometimes tortured, based on specific fact patterns (which can reach the level of pure sophistry); but it at least goes through the motions of respecting the Constitution and its own precedents. Also, note that those precedents do not always relate to constitutional matters; more often they simply relate to the Court’s interpretation of a statute or regulation. In fact, the Court goes out of its way to avoid constitutional issues if it possibly can. If it can resolve a case on some other basis it will almost always do so.

    Randy Kozel has just written a book about a “theory of precedent”, in which he attempts to develop a philosophical basis by which the Court should decide when to overrule its own prior decisions (in his view, rarely). I haven’t read the book, and probably won’t. However, he did write a series of articles on his view which appear on the Volokh blog (here’s a link to the first one). I largely disagree with his approach; in a comment to the third of his related articles I wrote*:

    The more I think about this series of articles, the more I’ve come to the conclusion that it’s basically an attempted justification for the “ratchet” effect: activist (mostly liberal) justices push the Constitution to (and beyond) its limits, then principled (mostly conservative, in the old-fashioned sense of that word) justices are asked to accept that as “settled law” even though they believe it to be wrong. I don’t accept that. Every constitutional case should go back to first principles: to the language of the Constitution. Prior decisions can certainly help inform a justice’s interpretation, and deserve a certain amount of deference, but if the case was wrongly decided it should be overruled. Period. Otherwise we are locked into a series of ever-greater distortions and perversions of what is frequently the plain meaning of the words (judicial sophistries notwithstanding). Stare decisis is a tool, not an objective in itself (let alone a judicial straightjacket).

    But at least the issue is receiving serious attention in thoughtful academic legal circles. Although it clearly respects precedent, and prefers not to do so, the Supreme Court does occasionally overturn its prior decisions (otherwise Dred Scott would still be “settled law”). And Justice Thomas is growing increasingly restive with some prior rulings and has suggested that they be revisited. Justice Gorsuch, being something of an originalist (or “textualist” as he seems to prefer), might be prepared to go along with him; time will tell. Interesting times.

    * Yes, I know it’s bad form to quote yourself. Deal with it!

  • Laird

    Back to the Venezuelan Supreme Court issue: So (according to Mnuchin) in Venezuela the judicial branch is interfering with the legislative branch, thus the executive branch in the US is going to intervene to correct this by imposing sanctions on specific individuals there? Does anyone else have a problem with this?

  • Alisa

    Indeed, Laird – utterly stupid and arrogant.

  • Julie near Chicago

    Laird: The Great Frog is pleased by your recognition of Its authority and your gratitude for Its generosity in seeing to it that we behave in accordance with our best interest.

    . . .

    bobby, a complete side-note: As I’m sure you’re aware, Richard HATES Heller, calling it “an intellectual mess.” He takes “the militia clause” (technically not a clause at all, but never mind) of the 2A as indicating that the only* purpose of stating the RKBA, which is the substance of the 2A, is to allow the several States to constitute militias as they wish, without interference from the FedGov in requiring (or even, I suppose, allowing) the militiamen to have arms. (I would add that it also would allow militia members to go about armed. Something about “…and bear arms….”)

    His beef with Heller, as I understand it, is that the 2A doesn’t apply to DC because DC is not a State, but rather a jurisdiction which is to be governed directly by said Federal Government.

    *”Only purpose”: Debatable, and definitely debated by us red-neck gun nuts.

  • Julie near Chicago

    I suppose I should clarify. Richard hasn’t said “the only purpose” in so many words, as far as I know. But he implies it constantly and consistently, arguing that it explains or identifies and the purpose of the Amendment, and that it thereby implies the only acceptable grounds for applying it in any given case.

  • Laird

    Julie, I haven’t read Posner on Heller, so I have only your description here to go on, but as to his take on the “militia clause” (sic) it’s clear that he knows absolutely nothing about the history of the 2A or what “militia” meant at the time of its ratification. But as to DC not being a state, he is absolutely correct on that. The federal government has complete jurisdiction over it (although, as a practical matter, it has delegated most of that authority to a local government). This is why, for example, it has no representatives in Congress (merely an “observer”, and that itself is of relatively recent vintage). So his distinction of Heller with respect to DC might have merit (I’d have to see his reasoning to be sure). But it’s clearly good law, and properly decided, for the 50 real states.

  • Julie near Chicago

    Laird,

    Posner! Ah! You guys were talking about Posner, whom I haven’t dated much and therefore tends to escape my notice. By “Richard,” I meant Richard Epstein. I’m sorry. Mea culpa & all that. :>(

    Yes, I understand about the non-State status of DC and thus the erroneous Heller decision, and that Richard (my Richard *g*) is quite right about that. Unfortunately Richard is a native of either Brooklyn or Queens (forget which) and then LonG-Island *g*, and has returned to his roots, leaving UC (still is a Senior Lecturer there, however) for NYU. As a N’Yawker, he’s never had guns much on his radar screen, has always said it’s really not his issue, and has looked upon them askance I think.

    He does seem lately to have come around to at least considering the theory that there might be something to the arguments that generally, crime goes down when legal gun-ownership goes up. He may still end up in favor of RKBA, on strictly statistical utilitarian grounds. But if he ever does put his mind to it, I don’t see how he could possibly fail to be persuaded by the argument that “when guns are outlawed, only outlaws will have guns.” Also, if he really thinks about it, there is indeed the meaning of the word “militia,” and all the to-&-fro about varying age windows among the several states, so forth.

    Anyway, if I trusted myself to use a gun competently at need, you bet you’d have to yank it from my cold dead hands! I’m already on the point of boycotting all the stores & other venues with “no firearms” policies. Unfortunately, that means that in Rockford, I’d have to give up eating. :>((

  • bobby b

    Julie near Chicago
    July 23, 2017 at 5:39 pm

    “As I’m sure you’re aware, Richard HATES Heller, calling it “an intellectual mess.

    I have to agree with him on one aspect of that. Heller IS something of an intellectual mess, but only because the Second Amendment language itself is a bit of a mess, and the only way to make ANY explanation of it that works is to torture some part of the language.

    I mean, c’mon: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” If any high school student of mine wrote a sentence like this, they’d be doing extra reading exercises.

    Epstein chooses one possible interpretation of it. Heller at least makes use of history and grammar rules to parse it out closer to what was presumably intended, but it’s not as cut and dried as interpreting “No Tax or Duty shall be laid on Articles exported from any State.” Clearly, clear writing was available to the writers back then; they just skipped it in drafting the 2A.

    Myself, I’d say that it meant that, since it was important that the country be able to form up a competent defense quickly, the people should always be able to use and maintain firearms, in order to maintain proficiency. That maintains the “militia clause” (not a clause?) as meaningful words in the sentence, and fits with the history of the time of its drafting. Epstein would largely rewrite it to mean that the militia itself, not the preparation for militia duty, is the primary driver.

  • Julie near Chicago

    bobby,

    I’m not sure about the writing styles at the time. I suppose one could take it more as offering some sort of excuse/justification/grounds for letting the people arm themselves. I’ve always thought that at the time, it would be taken for granted as an obvious example of the right of individual self-defense, and also of the right to hunt. Then again, the issue of just who had the RKBA in Jollye Olde E. had occasioned major disorders. Thus Eugene V., excerpt from “18th and 19th-Century Commentary on the Right to Keep and Bear Arms”:

    The English Bill of Rights of 1688 provides “that the subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law”; the Second Amendment seems to at least partly echo the English right, though without the qualification to Protestants and to arms suitable to citizens’ condition and allowed by law. It stands to reason that the 1791 American legal culture understood the purposes of the Second Amendment as linked to the purposes of the English right.

    Personally I think the most natural reading of it is precisely “Because/Since a well regulated Militia is necessary to the security of a free State, ….” But might the Framers might have deliberately avoided putting it that way and purposely leaving it a bit ambiguous so as to allow room for people to argue against interpreting the 2A as applying only to active members of a (State’s) Militia? There were, after all, age limits (varying by State, I think) for being included in a given State’s Militia — or am I wrong about that?

    As for your final para, that’s the way it seems to me, only I wouldn’t think the “arms” would be restricted to firearms. And I do see what you mean about the Epsteinian 2A. Still, I wish it were spelled out somewhere in the Const. that the individuals constituting “the people” have a Constitutional near-absolute right of self-defense.

    .

    To make the “militia clause” into a real clause, it would need some sort of conjunction at the start, such as “Because” or “Since”; as it is, the militia bit is just a dangling phrase. (“Hopefully, he’ll recover.” “Hopefully, she’ll get here in time.” “Thankfully, nobody sang ‘Amazing Grace.'” You remember Miss Grundy on that topic! *g*)

  • bobby b

    ” . . . as it is, the militia bit is just a dangling phrase.”

    Which is precisely why I think they made a grammatical mess of it. It was clearly within the intellectual capacities of the drafters to make it clear – to simply say “Because a trained and ready militia is so important, the right . . . ” – but they instead wrote something that can be read several ways and that must necessarily be interpreted in light of history instead of standing by itself. Good writing is clear and self-sufficient and requires no interpretation or explanation. Ah, well . . .

    My favorite tee-shirt is still the one I picked up in Florida, with a picture on the front of a grizzly bear wearing a huge dog collar and wearing an AR-15 strapped to its chest, and saying across the back “protect the right to keep and arm bears.”

  • bobby b (July 23, 2017 at 8:37 pm), the phrasing of the clause seems to me to make sense in terms of the typical ideas of the time. A militia was understood as the opposite of a regular army, such as a despotism could use to oppress its citizens. “Well regulated” allows some power to the authorities but is itself constrained by the second clause: “the right of the people to keep and bear Arms, shall not be infringed.” If the state could infringe that right, the militia could be in effect restricted to a regular army distinct from “the people”, whereupon the people would cease to be an independent constraint on power.

    As regards the grammar, the first clause is therefore merely stating a fact of political theory (which in the US at the time could be treated as self-evident and/or universally accepted by the very logic of how and why the US existed). The second clause is the meat – the limitation on power required so the desired state cannot be undermined.

    This is just my trivial attempt at an immediate reaction to the phrasing using my knowledge of late 18th century political idiom FWIW. Vast amounts have been written about this, some small portion of which I have read, but I think the above is how I would construe it if I’d read none of that but had my other 18th-century reading knowledge.

  • Lee Moore

    I’m afraid I don’t understand the exchange between Julie and bobby b on the alleged drafting infelicity of the Second Amendment.

    “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

    has exactly the same linguistic form as :

    George being fat, no one shall give him any dinner.”
    Mount Dooberry being sacred to the Humdumba tribe, no one shall attempt to climb it.”

    It’s an absolutely standard formation in English. “Because” is not needed – the formulation simply offers the first subclause containing “being” as the reason for the second sub clause which contains the instruction. I accept that in 2A there are unexpected commas after “Militia” and “Arms” but comma conventions are by no means standard, and have sometimes been used just as a pause for breath. I also accept that providing a reason for the instruction is unusual in a legal text of that vintage. But that doesn’t make the meaning of the words unclear.

    So I see one absolutely clear meaning, plainly on view. If it is alleged that there is another meaning that the words could take – what is it ? In particular, if you don’t like the unusual commas and that’s the reason for disliking what I think is the clear reading, let’s see the reading that explains the commas.

  • bob

    My understanding is that “well-regulated” means “well-trained” or “proficient”, and that “militia” means all competent adult males, with no relation to control by the government. In fact, the purpose of the second amendment is to allow a free citizenry to act as a restraint on a government that seeks to tyrranize.

    Relatedly, the Founding Fathers did not at all want a standing army, fearing that it would be used against the citizenry.

  • Lee Moore

    The 3rd Amendment also displays a not entirely standard sprinkling of commas :

    No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

    If commas were being used to divide grammatically distinct sub-clauses, the comma after “shall” is either superfluous, or should have a mate after “peace.”
    So I don’t think we can take 2A’s apparently odd comma-ing as evidence of anything other than that the convention for using commas was (and remains) somewhat fluid.

  • bobby b

    Lee Moore
    July 23, 2017 at 11:33 pm

    “George being fat, no one shall give him any dinner.”

    – But George isn’t fat anymore – so we can feed him, right?

    – But this isn’t dinner, it’s just a late second lunch, so it’s okay, right?

    – But this food has no caloric value and won’t contribute to his weight, which was the entire point, so he can eat it, right?

    – You said we shouldn’t give him food, so I sold it to him, and that’s okay, right?

    – Guidelines have changed and people have expanded and George is no longer considered “fat”, so we can feed him now and remain obedient to your directive, right?
    – – – –

    If you’re writing the new set of Rules for the formation of your new country, I think you can be a bit clearer than “George being fat, no one shall give him any dinner.”

    I agree with you as to the 2A’s proper interpretation. Lots and lots of anti-gun people claim to disagree. The word choices of the drafter of that amendment leaves them wriggle room to make a colorable argument that the meaning differs from how you and I interpret it. Good writing – such as “George eats nothing, ever!” – leaves little wriggle room. Wriggle room allows motivated anti-gun judges to rewrite the 2A to their liking.

    The question is never “can people of good faith agree on a likely meaning?” The question is, “can devious people bend the rules of grammar and logic enough to claim that a sentence means something different from how I read it?” It took us 225 years to get Heller because the 2A gave them room to do so.

  • Julie near Chicago

    Niall, around here the standard explanation of the phrase “well regulated militia” is that it means a militia whose members are well-trained in the maintenance and use of their weapons and in their ability to function well as a defensive force. It doesn’t mean “well-governed” as one would mean if saying something like, “…and America and Britain both were once well-governed,” meaning that they had governments that enacted good and proper laws that were enforced to good effect.

    . . .

    Lee,

    Surely your three italicized sentences are of the same form. And I think we’re all familiar with the idiom — much as our various Miss Grundys tried to train it out of us, as it is not Standard English. As in so many other cases of commonly misused words and phrases in English, we have a special file-folder for this departure from the Ideal, labelled “The Dangling Term.” (I say “Term” for want of a better word. It might be a phrase, such as your examples above, or a single word, often an adverb: “hopefully” and “thankfully” in my examples.) The problem is not a mere technicality. “Hopefully, he brings good news” might mean “I hope” or “we hope” or “they hope” or “[I know] you hope.” It’s not really clear. (Which is rather useful on those occasions when your personal world will not fall apart should he not bring milk, but your friend’s kids will make her life a living hell if there’s no milk. So, tactfully, you say, “Well, hopefully he’ll remember to stop for milk.”)

    In the case in point, we’re used to the usage, and the trouble arises because we automatically read whatever seems to us the correct word into the phrase. So to you and to me (and to Richard), it really does suggest interpretation as “Because a well regulated militia is necessary….” And off we go.

  • Julie near Chicago

    bobby, I am loath to disagree with you, as I am hoping to talk you out of your T-shirt, for which I was stricken with desire immediately I read your quote. :>(((((

    .

    But it took us 225 years to get Heller mostly because nobody (well, never say nobody) even questioned the meaning of the thing until sometime in the late 1800’s. Sigh…Negroes can’t be allowed to have guns, y’know! (Or so I understand.) Michael Bellesiles to the contrary, it was taken for granted that the 2A meant exactly what the substance of it, namely that “the right of the people to keep and bear arms shall not be infringed,” says.

    It was a non-issue.

    But now that the issue has been invented, I think the 2A would be far stronger if it merely stated the directive, without the preamble. Still, among other things, the Framers were trying to reassure the States that the Federal Government wasn’t going to interfere with their powers, as sovereign States (in the same sense that England was a State, France was a State, so forth), to govern their citizens.

  • Lee Moore

    I agree with bobby b that :

    “George being fat, no one shall give him any dinner.”

    leaves plenty of wiggle room to get round the rule, by providing breakfast, or selling him dinner etc. But this wiggle room has nothing to do with torturing the words to mean something different; it’s to do with interpreting the rule correctly and spotting ways to feed George without breaking the rule. I make no claim that the Second Amendment achieves what its authors hoped it would achieve (if anyone could know that.) Merely that it is unambiguous. If George should become thin, or if well regulated militias should cease to be necessary, that simply means that the expressed reason for the rule has ceased to be valid. It may provide a good reason to change the rule, it doesn’t of itself change the rule.

    “Witches being dangerous, anyone riding a broomstick will be burned at the stake”

    provides a clear rule and a clear sanction for anyone caught riding a broomstick, absolutely regardless of the state of scientific opinion on the existence of witches.

    The word choices of the drafter of that amendment leaves them wriggle room to make a colorable argument that the meaning differs from how you and I interpret it.

    Well that’s what I was asking. I have never seen any even colorable argument that it means something different from what you and I think it means. It’s certainly arguable – if you are a purposivist – that the stated justification for the right to bear arms – militias – should be treated as allowing judges to reach into the perceived purpose and override the clear meaning of the text. That’s what purposivism does. But it doesn’t actually change the meaning of the text. It overrides the text. No text is immune from this because the legal philosophy is to hunt for the purpose and apply it, whatever the words say. So I’m still asking – what colorable arguments have you seen that the text means something else ? I’ve never seen any. Educate me.

    Julie – I don’t think it’s a dangling term I think it’s a standard use of a participle to express a reason. In my mind I associate it with Latin translations so it may be a construction used more often in Latin than in English, but I certainly wouldn’t regard it as a mistake or a departure from standard grammar.

    The Nervii being disorganized and unprepared, Caesar squished them like bugs in a single afternoon.

    That sort of thing.

  • Laird

    I agree with Lee Moore about the grammatical construction of 2A (and disagree with Julie in that it is “Standard English”). The conjunction “Because” or “Since” you all desire at the beginning of the sentence is unnecessary because it is implied, a thoroughly standard convention. (By the same token, the single word “Go!” is a grammatically complete sentence because the subject, “you”, is implied.) And, as Lee points out, it is a common enough formulation even today; it was even more so in the 18th century. It can only be “misinterpreted” by those desiring disingenuously to corrupt its clear meaning for political purposes.

  • Fred Z

    Niall Kilmartin (Stirling):

    I take your point. When judges are appointed because they have vaginas, preferably black or brown vaginas, the quality of their legal knowledge, skills and judgment becomes secondary, tertiary or worse.

    Even so, the quiet chit-chat amongst the boys is – too many women lawyers are emotional, low IQ idiots. Not all of them, indeed there were two in particular in our courts that were brilliant, hard cases, decisive, detached and unemotional. Our love of appearing before them was entirely non sexual.

    As Derbyshire points out, the issue is a statistical one – what percentage of blacks / women / arabs / scots / jews / hottentots / cockneys / whatevs are on the wrong side of the bell curve, and how high is the bell?

    Too many women are dullards. Their bell curve for intellectual rigor and strength is poor.

    They have many strengths we man cannot equal, but lawyering is not one of them, on average, b which I mean when we stop choosing them exclusively because they have vaginas we’ll do better.

  • Julie near Chicago (July 24, 2017 at 12:40 am), in what way is “Hopefully, the second amendment shall never be lost” unclear whereas “It is hoped that the second amendment shall never be lost” is clear? Both are dangling in the sense that neither specifies who is hoping, but both are grammatically correct. “After eating our lunch, the teacher resumed reading Bellisles to us” suggests the school is not teaching the kids correct grammar either, but “Hopefully” is not mis-assigned, just unassigned. Like the passive construct I compare it with, it can be poor style and/or vague writing, and it’s good teaching to make writers aware enough of it that they notice when they’re relying on context for meaning, but I do not think it is actually wrong grammar as such.

  • John K

    I find I am in agreement with those who do not like the wording of the Second Amendment.

    Ideally, it should have been two different Amendments:

    i) The states have the right to form well regulated militias;

    ii) The right of the people to keep and bear arms shall not be infringed.

    Perhaps to keep the Bill of Rights down to ten Amendments, these two (admittedly linked) concepts were combined.

    But the bottom line I would say is that the RKBA in the USA lies with the people. If they elect pro RKBA politicians, then the RKBA will remain. If they elect Michael Bloomberg, Bill de Blasio and Rahm Emmanuel, then it will not.

    As has been pointed out, the English Bill of Rights of 1689 makes mention of a right to own arms for self-defence “as allowed by law”, but with the current state of British law and British politicians, it is a right which has fallen into disuse and is largely forgotten.

  • Lee Moore

    I don’t wish to engage directly with Fred Z, since my own experience with lawyers is not that extensive; and with judges entirely limited to what they have scribbled down on paper. Suffice it to say that most of the lawyers I’ve met are male, most have been fairly clever, and most fairly diligent. But I haven’t noticed female lawyers as being particularly stupid, though as I say in the crocodile eat crocodile world of high end commercial law, where I have bumped into lawyers most, they’re usually male.

    However, two points :

    1. it’s not obvious to me that we need judges to be ferociously clever. They need to be clever enough to follow and decide between the arguments put before them, but that seems an easier task than thinking those arguments up in the first place. I’ve always enjoyed the exchange between FE Smith and a judge, which seems to be to get the intellectual balance between advocate and judge right :

    FE Smith : [dazzling, brilliant and erudite explanation of some legal point]
    Judge : “I’m sorry Mr Smith, but I’m afraid I’m none the wiser.”
    FE Smith : “No, my Lord. But better informed.”

    2. rather than have ferociously clever judges, I think we want clever enough judges who have other qualities, including honesty, modesty (ie the absence of a desire to hog the limelight, not a referee who loves the sound of his own whistle, or who loves to garner applause); restraint (an absence of a desire to rule the world)

    Since, on average, men, on average, love showing off and engaging in dominance displays, on average, more than women, on average, even if it were true that female lawyers, on average, have lower intellectual wattage than male ones, it may be that, on average, they are more likely to have some qualities that suit them well to be judges.

    This is not to deny that there are female bossyboots in the world. Far from it. I am related to, or married to, most of them.

  • bobby b

    Lee Moore
    July 24, 2017 at 3:54 am

    “Educate me.”

    I’d be the wrong correspondent to attempt to educate anyone about the alternate meanings of the 2A; I agree with you as to its meaning.

    But, in the Court Opinion for Heller, the two dissents take up almost two-thirds of the Opinion, and are likely the very best of explanations for the other meanings put forth.

    Stevens’ dissent begins on page 68 – he addresses concerns primarily having to do with how the 2A fails to limit any legislative restrictions that might be allowed concerning the RKBA.

    Breyer’s dissent is the more germane of the two for purposes of this discussion, and begins on page 114. His opinion goes deeper into the various alternate meanings introduced by the “militia” language.

    As I said, I agree with you as to what it means. But prescriptive language, whether it be statutory or constitutional, must do more than set forth one meaning; it must also foreclose all other meanings. The Constitution is full of phrases and sentences that are short, concise, and clear in their one meaning; the fact that the USSC could devote almost one hundred pages of an opinion to the alternate meanings to be found in the 2A is a strong indication that the drafting of this sentence could have been better.

  • bobby b

    Fred Z
    July 24, 2017 at 4:42 am

    “When judges are appointed because they have vaginas, preferably black or brown vaginas, the quality of their legal knowledge, skills and judgment becomes secondary, tertiary or worse. . . the quiet chit-chat amongst the boys is – too many women lawyers are emotional, low IQ idiots.”

    Wow. We’re hanging with different groups of boys.

    I’ve dealt with many judges and several hundred lawyers, about one-third of both being female. I’ve never noticed any such easy divisions as what you describe. In fact, I’d say that one gets a more coolly dispassionate treatment from the women than the men – but this might be because women judges and lawyers feel a stronger pressure to be that way than do men. They need to overcome some prejudices not faced by the boys.

    I’d guess that it bothers some men more to lose an argument to a woman than to a man, which causes them to look for reasons for the loss unconnected to their own performance. But that’s just my guess.

  • Lee Moore

    Thanks for that bobby b. I didn’t read Stevens but I did read Breyer. Or skimmed would be fairer. I skimmed and skimmed, seeking some actual engagement with the text of the Second Amendment. Breyer’s opinion goes on for 44 pages, and so far as I could see this is the sum total of his analysis of the actual text :
    As previously noted, there is general agreement among the Members of the Court that the principal (if not the only) purpose of the Second Amendment is found in the Amendment’s text: the preservation of a “well regulated Militia.”

    Tha tha tha tha… that’s all folks.

    As it happens, I think it’s a reasonable point. The first bit of 2A does indicate that the purpose, or at least one of the purposes of preserving the right to bear arms is militia-related. If you are a purposivist –as Breyer is – who believes that discerning the legislative purpose allows you to override the actual meaning of the text, then fine. But as I said in an earlier comment, this is not offering us an alternative meaning of the text. It is offering us an alternative scheme for deciding cases, which is Perceived Purpose trumps Text.

    Breyer offers us no alternative meaning. There is much discussion of the implications of the presumed “purpose”; discussion of precedent; discussion of policy, consequences and statistics; criticism of the majority’s arguments; discussion of other colonial era statutes; discussion of weighing interests (more policy) and so on. And on and on. Which is all fine – so long as you don’t want to decide the case by reference to the text.

    Now I agree that by sticking in a reference to militia, the drafters of 2A offered up a hostage to fortune. They offered an explicit reference to purpose which makes it much easier for purposivists to justify their discerned purpose. And use it to trump the text. But leaving out the reference to militia would make the problem smaller, it wouldn’t make it go away. Purposivists would still be rootling around for unspoken purposes, and their scheme allows them to. I’m not saying, of course, that all purposivists are intellectually dishonest and only invent purposes that suit their preferred outcomes. What I’m saying is just that in this 2A case, the text is not ambiguous, not even slightly, and no one, even honest purposivists, is offering us even a hint of an alternative meaning.

  • Alisa

    All vaginae are pink, Fred Z, just as all swans are white. Happy to have helped.

  • Mary Contrary

    @Laird:

    But as to DC not being a state, he is absolutely correct on that. The federal government has complete jurisdiction over it (although, as a practical matter, it has delegated most of that authority to a local government)

    If 2A is a right for the States to have militias, then it is significant that DC is not a State.

    But if 2A is a right for the individual to bear arms, then it is surely not significant that DC is not a State. If Congress and the States are forbidden from restricting the bearing of arms, they are forbidden from doing so in federal districts as well as within the States.

  • Mary Contrary

    Bobby b wrote:

    Good writing is clear and self-sufficient and requires no interpretation or explanation

    Lee wrote:

    by sticking in a reference to militia, the drafters of 2A offered up a hostage to fortune. They offered an explicit reference to purpose which makes it much easier for purposivists to justify their discerned purpose

    I think this is unkind to the Founders. They also wrote:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    “No law”. You can’t get clearer than that. And yet we have widespread regulation of commercial speech, of political campaigning, and sundry other areas. It just shows that there is no wording so clear that it won’t be ignored by those determined to do so.

    Lee declines to accuse the Purposivists of intellectual dishonesty. I have no qualms about doing so.

  • Mr Ed

    DC did not exist when the Constitution was adopted, it was carved out of Virginia (since retro-ceded) and Maryland by an Act of 1790, under Article 1, Section 8, 17:

    17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States,

    And I note that the militia in the Constitution are presumed (as I read it) to be there to be called for as a Federal militia.

    15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

    16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

    Noting that any money for any Army could only last 2 years:

    12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

    Even today in the UK, the British Army’s legal authority to exist is renewed by Parliament every 5 years, pursuant to the Bill of Rights 1689.

  • Laird

    I second Mary Contrary’s comment (July 24, 2017 at 12:02 pm).

  • Julie near Chicago

    Niall,

    After eating our lunch, the teacher resumed reading Bellisles to us”.

    It is always nice to adjourn with a grin on the phizz and a chuckle in the throat.

    The G.F. and I thank you for this wonderfully apt example. :>))!

  • John K

    Ideally, perhaps, the Founding Fathers should have had two Amendments, to the effect that:

    i) The states shall have the right to form militias;

    ii) The right of the people to keep and bear arms shall not be infringed.

    However, they combined the two. They could not have foreseen the machinations of 20th Century disarmament zealots.

    Ultimately, however, the RKBA depends on the people voting for politicians who will support it. The wording of the Second Amendment would have been the same under President Hillary Clinton, but we all know that that would not have stopped her trying to eliminate it in practice.

    The fact that the English Bill of Rights records a similar right to own arms for English people “as allowed by law” shows that mere words are no defence against disarmament by the state.

  • Lee Moore

    I’ll beg to differ with Mary Contrary and Laird, if I may.

    This is not the time or place to list the many reasons why, IMHO, purposivism is a deeply flawed theory of legal interpretation, having many gaping intellectual holes, before one even comes to the practical holes. Textualism – though far from flawless – is far superior. I doubt many, or any, on here disagree, so we’ll skip past all that.

    But purposivism is not necessarily a dishonest approach to legal interpretation. An honest man can believe in it and attempt it. As with alchemy, the attempt is likely to end ignominiously, but purposivism and dishonesty are not the same thing. Purposivism is not a theory that anything goes, it’s a theory that you have to seek out the purpose. That’s a boundary to arbitrary decision making. It’s just a boundary that’s got penumbras coming out of its ears.

    In the same way schoolteaching and paedophilia are not the same thing. Not all schoolteachers are paedophiles. But if you are a paedophile, schoolteaching is bound to be a profession that piques your interest. And if you are a chap, or chappess, who likes to order people about accordinng to your whim, then getting onto the bench and adopting the theory of purposivism is likely to be much much more attractive than textualism. It’s much more difficult to be caught being a mere whimster, if you profess purposivism, than if you profess textualism. The textualist’s chains are visible to the world. The purposivist’s chains are secret. So purposivism attracts scoundrels. It also attracts those who suffer from large doses of hubris. (It is possible to be very hubristic without being actually dishonest.)

    So – purposivism is a bad theory of interpretation. But it is not inherently dishonest. It merely attracts scoundrels and gives them cover. But you don’t have to be dishonest to be a purposivist. I don’t think – from what little I’ve read of his – that Breyer is a scoundrel. He just suffers from hubris.

  • Paul Marks

    Laird – would elected judges (subject to regular free reelection) have, for example, declared that the Federal Government, in clear violation of the Constitution, can steal privately owned gold (from people who have committed no crime) and rip up legal contracts (the gold clauses) in an after-the-fact judgement? Nor was this recent – it was in 1935, the Second Greenback case (a patently clear violation of the Constitution) was in the 19th century.

    How about the 1960s judgement that State Senates must be elected on the basis of population – thus destroying the very purpose of a Senate (which is to limit the power of high population cities in relation to thinly populated rural areas).

    There are a vast number of other examples.

    Unelected judges get to consider themselves a Platonic Priesthood whose understanding of a text (a Constitution or law) is above the “mere literalism of the common man”.

    If you do not want elected judges – then have them selected by lot, essentially have a constitutional JURY (Luther Martin warned at the Constitutional Convention that a constitutional court of appointed judges would inevitably subvert the Constitution.

    If judges must be appointed (and why?) then let it be openly by politicians and the elected politicians must be able to hire and FIRE the judges (as was suggested in Poland – only to be closed down by “protests” created by the NGOs and other international elite front organisations).

    At least there should be a rule (the education system being as it is) that a judge must NOT have gone to a university, or (at least) must NOT have studied law.

    “But judges need a knowledge of law” – then let them have cleaned the ink pots of lawyers as children (and mopped the floor of the chambers and so on), till old enough to argue cases successfully themselves for paying clients.

  • Paul Marks

    At least in theory South Carolina judges are selected by the State Legislature – which is better than the some body or commission deciding who the judges are. If the judges are selected by some special body there might as well be a notice “only leftists need apply”.

    As for people utterly opposed to the election of judges or elected politicians deciding who judges are – then select the judges by random lot in Constitutional cases, i.e. Constitutional Juries.

    An ordinary person, selected at random, is far more likely to be interested in what a Constitution actually says, and vastly more likely to really listen to the arguments of council of both sides of the dispute – than someone from the “educated elite” is likely to do.

    Someone from the E.E. is unlikely to be interested in what the Constitution actually says, or in what Natural Justice demands, or to listen to the arguments of the council of both sides – they are far more likely to just seek to reflect “enlightened opinion” i.e. the dinner party guests of people such as Lady Hale.

  • Laird

    Yes, Alisa, that is an interesting case (and, I think, correctly decided). Of course, that court reached precisely the opposite conclusion of one in California (I think that was a District Court, not the 9th Circuit, but I could be wrong) which upheld a licensing ordinance in some city (Sacramento?) having a “special need” type of requirement which was rarely found, and so permits are rarely issued. I hope DC appeals so the Supreme Court can have another crack at this.

    Paul, I don’t want to get into a lengthy discussion here of the judicial selection process, so I’ll just say that I disagree with almost everything you said. The gold confiscation case of 1935 was decided by a Supreme Court which had been completely cowed by FDR (with his threat to “pack” the Court); of course elected justices would have decided it in exactly the same way, because they would have been elected by the same electorate which elected and re-elected Roosevelt by such large majorities. If you want a politicized Court that is exactly the way to get one.

    Forcing judges to go through the indignities of popular election subjects them to even more political pressures than if they are appointed. The qualities which make for a good campaigner have almost zero correlation with the qualities which make for a good judge. The process seems designed to result in the election of the least qualified candidates. Moreover the general public has absolutely no basis upon which to make an intelligent, informed decision on judicial candidates. I’ve lived in such jurisdictions; it is a bad system.

    And if anything, South Carolina’s is worse. (You selected that state because it’s where I live, but others here might not know that.) You may have read the law, but that does not tell the real story. As a practical matter, all state judges (from Supreme Court on down) are selected by three powerful (and corrupt) legislators; the governor has absolutely no role in the process. Furthermore, many of the members of our (part-time) General Assembly are attorneys who regularly practice before those same judges. The system institutionalizes conflicts of interest for those legislators and ethical dilemmas for judges. I know for a fact that it affects trials. It is the worst possible method of selecting judges (which probably explains why it is used by only one other state: Virginia.) I am working right now with some of our legislators to seek a constitutional amendment to change the process (I helped draft the pending bill).

    I will send you privately a White Paper I wrote expanding on all of this.