Should Judges Follow the Constitution?

by Jeffrey Miron on May 11th, 2010
25 CommentsComments

Elena Kagan’s nomination to the Supreme Court will presumably generate renewed discussion of this issue.

It’s an academic debate, however, since (virtually) no judges follow the Constitution. Instead, judges on the left and the right invoke the Constitution when it supports their desired outcome and ignore the Constitution when it does not. Only a few apply the Constitution consistently, indpendent of where it leads.

This is unfortunate, but it seems inevitable.

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  • Cliff Nelson

    Constitutional interpretation:

    1. Is a political process and
    2. I don’t think anyone thinks the constitution should be interpreted without regard to implications.

    For example, many ideas exist for which a constitutional basis may exist (i.e. an argument supports the notion). And some of those ideas may in the abstract increase “well being” but that is not the end of the inquiry because any change necessarily involves disruption, retraining and human ability to adapt.

    Since none of those factors are a given, the political process is a necessary part of interpretation as it protects against results that would not be sustainable or within human limitations.

    Perhaps the best way to look at it is to say we have a constitution that frames the debate, but the picture of what society looks like inside that frame has more to do with political actors seeking to use the constitution for their own purposes.

    So to answer your question, Judges must respect the constitution, but that is not to say that can or should be blind to political realities.

    It is nice to think about individual rights, but ultimately individuals serve and sacrifice themselves to group welfare. I guess that is part of human nature that may conflict with some libertarian ideas.

  • bob

    It was designed that way for a reason and there is no credible (adult) argument for judges to NOT follow the constitution beyond “he did it, so why can’t I…neener neener!”. By allowing judges to play legislative quasi dictator we’re playing with fire…no, not fire, nuclear weapons with the keys inserted. Once the rule of law goes, god help us all, cause it will get ugly.

  • Cliff Nelson

    “there is no credible (adult) argument for judges to NOT follow the constitution”

    Well … I could say that the constitution must be moving for someone to follow it, but if you think that is a cheap shot, I’ll just point out that everything benefits from evolution.

    Thus, the question becomes where is it moving to? And what are the forces at play when it moves? Clearly the text of the constitution is one of the forces, but what are the others?

  • Tom Dougherty

    “Well … I could say that the constitution must be moving for someone to follow it, but if you think that is a cheap shot, I’ll just point out that everything benefits from evolution.”

    I would love to play poker with Cliff Nelson. Because I am sure he would not mind me changing the rules of the game as we played. We will just say the rules of the game are evolving as we play. The reality of the cards in my hand will determine the rules of the game.

  • Cliff Nelson

    So … do you feel the same way about professional sports? Changes to the rules are off limits?

    • Since you are trying to get the job as a District Attorney, if there are jugeds who are aware of your strong performance, give them a call and ask if you could use him or her as a reference. Another option would be to try to schedule a 15 minute coffee break with a judge, have a brief conversation about career plans, and then ask if you can use that person as a reference.

    • Tom L / Lurong Challenge (scaled)Men’s Scaled- 25 Calorie Row, 100 Single Unders, 80 Kettle Bell Swings at 35 lbs, 100 Air Squats, 60 Push Ups from knees, 100 Single Unders, 40 AbMat Situps, 90 Walking Lunges595; finished off evyrhteing at 28.53

    • Wow! That’s a really neat answer!

    • That hits the target dead center! Great answer!

    • I don’t know what you think, but it seems to me that you believe there’s going to be some sort of mass awenaking where everyone will see just what’s going on and do something about it. And if not you think that one man will change the world? BOLLOX!Robert Green’s in prison and who cares? Not many when you look at those who do compared to the overall population of the UK.David Kelly was murdered and who cares?Tony Blair is guilt of war crimes and who cares? Hundreds of thousands of innocent Afghans and Iraqis were murdered millions more wounded, orphaned, widowed, maimed from the illegal attack on their lands and who cared?John Anthony Hill of 7/7 Ripple Effect was falsely imprisoned and who cared? He tried to prosecute the Queen for breaking all her oaths and who cared?Norman Scarth was imprisoned for speaking out against the system and who cared?I could go on and list more and more…The thing is people don’t care. They only get involved when it directly affects them. They continue to join the police and the armed forces, there to enforce the will of the elites. They fly planes and drop bombs without a question as to why they’re doing it and who they’re killing and what that human below them did to deserve their murdering them. People today are dumber that they’ve ever been. They have been conditioned to receive all information from the nanny msm. Their opinions are formed by the msm. They have given up their culture and call those racists who still try to hold onto it. They have believed the doublespeak that we should all live as one people, not realising this was the elite’s plan to herd all their sheep into one and destroy what differences there was and thus any resistance to them.The thing is Coz, everything and I mean EVERYTHING is going according to plan. You don’t think all what’s happening around the world is just happen-chance do you? If you do then you’re incredibly naive. Do you think the elites will give up their power out of goodwill, honour and justice? They are psychopaths, who view us and the world as their personal property. We are commodities to be bought and sold and nothing more. There will be a war against Iran. There will be massive loss of life in the wars with the rest of the world that follow. There will be a reduction of people to under 500m. There will be a one world government and banking system. There will be a King of Israel and the forming of a new religion and there will be tyranny for a VERY long time.You cannot stop what is, because you and the overwhelming majority simply aren’t prepared to make personal sacrifices, knowing if they do their families will be harmed in due process.Accept what is, because there is nothing and I mean nothing that can stop the inevitable from happening because our generations were reprogrammed a long time ago into never understanding or wanting to know just who their real enemy is.regards Harbinger

    • its a shame you didnt have more tolerance for other oonnipis and didnt put into practice your so called “freedoms”…you acted in the same way the government does…who abuse its powers because they can are a fraud ranty and your tax quibbles prove nothing, although the power company stuff gives you some merit. you pay income tax, you pay council tax and are enslaved as anyone else, well considerably more than me by the sounds of itas for harbinger and his 100% black and white freedom of speech….that shite should serve as a clear warning the perils of dreamers getting their own way. 100% free speech would probably be the bigges t threat to world peace going.i will leave you now with comment moderation, the disruption will return once you change back to an open blog be sure of that…i aint going anywhere as my career and internet connection are constant.your threats and constant foul language were tolerated by me for so long….you will pay the price as other bloggers tolerance of other oonnipis and foul language whilst hiding behind a delete button is no defence and will be dealt with.dickie doubleday.

    • Marius, exact la astfel de oameni de PR ma refeream si eu. Practic, in prezent, nu se poate concepe activitatea de PR fara obiective, KPIs si, desigur, fara componenta 2.0. Dupa cum citeam deunazi intr-un articol pe PRdaily, marketingul si relatiile publice, asa cum erau cunoscute in mod traditional, converg tot mai mult, astfel incat, peste un timp, e posibil sa discutam de un singur domeniu care sa reuneasca cele 2 tipuri de activitati.

  • Tom Dougherty

    Changes to the rules are not off limits. There are amendments to the constitution. But people who talk about an evolving or living constitution are not talking about amending the constitution. Amending the constitution is like changing the rules before you play the game.

    An evolving or living constitution is like changing the rules during the middle of the game. And if you are going to be changing the rules during the middle of the game it is very much like having no rules at all.

  • Cliff Nelson

    As far as your point about the middle of the game, no matter how the change is made (constitutional amendment or judicial precent) the “game” has long ago begun and there are no timeouts or clear endings or beginnings.

    For example, what real difference (aside from process and separation of powers) is there between a constitutional amendment holding that Corporations have free speech rights and the judicial holding in Citizens United?

    So I think the real issue is not so much timing but how much power the Court should have? And when thinking about this we should remember that a constitutional amendment can always override and overrule judicial precent.

    My argument is that proper separation of power and constitutional interpretation requires the justices to look at the document given the current political realities and then find its meaning. Thus, evolution.

  • Tom Dougherty

    “So I think the real issue is not so much timing but how much power the Court should have?”

    I think the issue is how much power the government (executive, legislative, and judicial branches) should have. The constitution sets the limits of government power, which can be expanded or contracted through the amendment process. Those who argue for a living constitution don’t like limits imposed on government by the constitution and are really arguing for unlimited government power without the inconvenient restrictions imposed by the constitution.

  • Cliff Nelson

    Wait … the decision in Citizens United restricted the government from acting – I don’t think giving the court more power equates with giving the government more power.

  • Ormond Otvos

    I love to listen to these arguments based on a mutual refusal to define the terms. I hear them at bars all the time, and I notice the blog author stays out of them, playing the provocative professor above it all, amused at the childish mistakes the debaters make.

    The framers were much more interested, as Roberts, of Rules of Order fame was, in setting the nature of the debate, to prevent irrationality from spoiling what little government is capable of being formed.

    I get no sense the framers were trying to set up some rigid government, but merely showing us what might work in their reality. To presume these giants of governmental thought didn’t know governance must change is a mistake so basic I wonder how reactionaries deal with the Internet.

    Oh, I do.

  • Julian Sanchez

    I think I’m with Dworkin on this. There is no interesting disagreement about whether judges should “follow the Constitution” or “make” vs “apply” law. There’s substantial disagreement about what that entails. But focusing on the former question gives you useless spectacles like Sotomayor professing that her judicial philosophy is “fidelity to the law” — which is about as informative as learning that her moral philosophy is “a theory of how one ought to behave.”

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