Should Judges Follow the Constitution?

by Jeffrey Miron on May 11th, 2010
17 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


  • 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.

    • Diana Lundquist / 16:42 RX But wall balls did not hit the mark every time despite my best eroffts. Thanks for the wall ball help JT hope it will make a difference. Great class Seth.


  • 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.”

    • Hi DeniseIt’s gonna be hard for the judges and aucneide to focus not on just a couple of places but I think you with your beautiful and perfect body will do just fine! All the best for the competition!Andre

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