How to Check the Little Dictators

-- By KippMueller - 16 Feb 2012

Rationalization as a Tool for Judges

In Plessy v. Ferguson, the court renders that equal protection of the law is established when two sides are separate but equal.

"Renders" is not a synonym for "held." That's not a correct statement of the holding, either. The Court held that a Louisiana statute requiring separate but equal accommodations of white and black passengers on intra-state passenger trains, and "equally" prohibiting white or black people from using one another's accommodations, did not violate the Equal Protection Clause of the Fourteenth Amendment or the "badges of slavery" provision of the Thirteenth Amendment.

In Brown v. Board, separate but equal does not satisfy equal protection under the law.

Brown holds, building on other cases involving higher-level public education, that de jure racial segregation of public primary and secondary schools violates Section 1 because, in that context, "separate is inherently unequal." It also explicitly overrules Plessy, which earlier cases such as McLaren and Sipuel didn't do, partly because petitioners didn't seek to have Plessy overruled in earlier appearances before the Court. On this history, Richard Kluger's Simple Justice remains unsurpassed.

And yet we’re living under the same constitution as we always have. How is this reconcilable with the belief that judges, isolated in a chamber of pure abstraction, can make principled deductions based on the Constitution without the adulteration of contemporary social values, the whims of majorities, or politics?

I don't know, because that proposition is so facially preposterous that it's hard to imagine how anything happening in the actual world could be reconciled with it.

Here, we have two courts addressing precisely the same issue, referring to the same text in the Constitution, and coming down on opposite ends.

In cases involving completely different factual contexts. Are you really suggesting that the Supreme Court couldn't have decided Brown on the bases used in McLaren, Sipuel, and all the teachers' pay cases brought by the LDF: that there was no actual equality in the segregated school systems at issue? Or that there is something fatal to a formalist theory of constitutional law if it is even possible for time to disclose that earlier decisions were wrong? See KensingNgFirstPaper for another exploration of the same issue disclosing other drawbacks to this approach.

Neither decision was overturned within its time, which means that neither ruling was an anomaly or deviated much from what is standard in the judiciary. And yet both claim to be logically deduced from the sound principles of our Constitution. The fact is that the term “equal protection” holds no definition.

Now you have decided that there's no such thing as the common law.

Similarly, the word “liberty” in the fourteenth amendment holds none. It has now become a tool for laissez-faire economists to protect business owners from labor laws. It was derived from British common law, used at the time to refer strictly to physical liberty. Ironically, that’s now become the one lost definition of the term, as evidenced by commonplace indefinite detentions in this country.

But this common law liberty you're talking about has even less content than section 1 of the Fourteenth Amendment, by your lights. It isn't located in a written constitution, it doesn't constrain the legislature, before 1679 it was perfectly procedurally compatible with indefinite detention without charges, and it never had the slightest effect on subjecting torture to legal control, to take just a few of the obvious points. Your legal history cuts against your theoretical position rather than for it. Nor is your summary of the current boundaries of "liberty interests" protected by the Fifth and Fourteenth Amendments close to accurate.

That’s because liberty means nothing either. Legal words hold no immutable meaning. It used to be that the definition of a person was a person. Now a corporation is a person.

No. Corporations were always persons. That's the point of making them. And indeed, it has been almost a thousand years since, in addition to corporations being persons, persons could also be corporations. See F.W. Maitland on the corporation sole, [1900] Law Quarterly Review 335-54. Corporations have been "persons" for the purposes of Section 1 of the Fourteenth Amendment since 1886. See Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394.

Regardless of the inaccuracy of your legal history here, why is it an objection to any social description, legal or otherwise, that its categories are mutable, given that society is always inexorably changing?

The words of the Constitution and of our laws have no frozen definitions. The text is an entirely malleable medium used to arrive at an end desired by the judge.

"Entirely" is an extraordinary assertion. What's your basis for it?

As Holmes alludes to in The Path of the Law and Robinson confirms, the judge makes his or her own decision long before the decision is written.

"Robinson" is a character in a poem. I don't know what his power to "confirm" propositions comes from. But I also don't understand why the discovery of the unconscious in human affairs somehow makes law meaningless. I can hold both "Freud" and "legal realism" in my mind and also understand the complex human process of deciding cases under the constraints of "the traditions of our people and our law." So can every judge I know. What prevents you from doing so?

The judge makes a determination based on his or her preconceived notions of what he or she wants (for any reason that he or she chooses) and the words are shift-shaped to make it so.

That's not any judge I've ever seen deciding any case I've ever been in or around. What experience have you that justifies this conclusion?

There is no logical process in law because there is no underlying truth to the law. The syllogisms have no established premises. The principles it claims to derive itself from are invented. And the deduction process isn’t real. Rather, the written proof begins at the bottom. Then the way to arrive at it is contrived.

The judge is a creator, not an arbitrator. The judge is a little dictator in our blessed “democracy”, tasked with nothing more than writing law and subsequently rationalizing it.

And this will not change without institutional change.

Who within the institution would want to change it?

Legislators don’t mind it because they are not to blame for the mistakes of the judiciary. In fact, the judiciary often makes decisions that the legislators want but are too afraid to publicize, such as the Citizens United decision.

Judges have no interest in doing so, because they are the possessors of the unchecked power. They want to make decisions based on their own notions of morality, principle, economic theory or whatever else. History does not suggest that possessors of power voluntarily forfeit that power for any reason other than a threat outside of their control.

A defeatist or revolutionary would likely argue that the entire system made an inescapable, inane assumption when it created a Constitution that assumed any human being could sequester themselves into an Aristotelian existence without being affected by social, psychological or political pressures.

What could theoretically be done institutionally to minimize this effect?

If we wanted to fix this situation from within the system, we first have to ask what we would want instead. Holmes and many legal realists argue that decisions should be made based on their effects, not based on formalism and abstraction from the world. At least if the courts were to adopt a legal realist perspective, they could admit that they are creators of law and own up to their role in American politics. They could subsequently see cases such as Citizens United, recognize an inherent corruption therein that spits in the face of democracy, and overturn it so as to empower the masses.

But what checks could alter the philosophy of the courts? Some state courts elect judges with term limits. In that case, they essentially recognize the court as lawmakers and decide that a check is needed. The judge is now privy to legal realism, because his or her decisions are now made with a strong incentive to positively affect the world around them if they seek reelection.

Of course, with politics comes corruption and perverse incentives. This is primarily because judges have to raise money for elections, which means knocking on the doors of special interest groups. In the process, the views of the masses are framed and molded by the media, and the oligarchical special interest groups are spoon-fed preferable law.

The best course of action for promoting legal realism and ensuring that judges represent the views of the masses in a fair, altruistic way would be to have an election process in which judges have term limits and run strictly publicly funded campaigns without even soft money. That way, each judge would be almost entirely focused on how to please the people, and would make decisions primarily based on that incentive. Special interests would certainly find ways to impose themselves, but would have a much harder time doing so.

The judiciary branch is not supposed to be interfused with politics. But it already is. The sooner we stop pretending like the judiciary is not already a political institution in which judges create law to climb the ladder and the sooner we provide checks on them as such, the better off we will be.

What checks would you provide? Having failed to grasp the difference between human life as it is lived—with unconscious mental processes primary and rational processes secondary—and chaos in which words have no meaning, what political constraints do you apply to law other than force?

The basic problem here, I think, is that failure to subject your argument to contact with objections leaves you both in possession of massive inaccuracies where you depend on facts, and unexamined theoretical inconsistencies where you depend on logic. I've indicated a few of the places where you've gone off the rails in one direction or the other. On the philosophy, you might find an article helpful that grew out of this course long ago: Zapf & Moglen, Linguistic Indeterminacy and the Rule of Law: On the Perils of Misunderstanding Wittgenstein, 84 Geo. L. Rev. 485 (1996).