Why is it that everyone’s politics seems to coincide so happily with their jurisprudential instincts and principles?
Nowhere is this more true than in the legal academy and blawgosphere. Political liberals/progressives seem to assume that the Constitution can accommodate their agendas (e.g. gun control)–and sometimes even demand their adoption (e.g. abortion, death penalty). Political conservatives contend that “progressive” policies are not only wrong, but also unconstitutional (e.g. affirmative action, 11th amendment jurisprudence, gun control, commerce clause jurisprudence, etc). In other words, everyone seems to believe that the Constitution is perfect–and, serendipitously, perfectly aligned with his/her hir own politics.
My own view is somewhat different. In many respects, I am a fierce political liberal. I favor redistributive economics, same-sex marriage, liberal abortion laws; I question the death penalty and see many gun restrictions as just plain common sense. I could go on, but you get the picture.
At the same time, I certainly don’t believe that the Constitution mandates all of these policies; and in some cases, I question whether it even allows them.
In other words, my jurisprudence is often in conflict with my politics; I don’t view the Constitution as a perfect document that can accommodate and accomplish every policy goal I prefer.
Posted by Hillel Levin on April 19, 2005 at 11:26 AM
» Law and politics from The Listless Lawyer An anonymous lawprof over at PrawfsBlawg asks, “Isn’t it odd… that everyone’s politics seems to coincide so happily with their jurisprudential instincts and principles?”… [Read More]
Tracked on Apr 19, 2005 9:03:25 PM
Comments
Fine, fine, we’ll talk about Justice Scalia. I think MJ has it half right.
1. There is a cluster of issues on which Justice Scalia adheres to his identity as a “dog” in the dog-prag divide (Dahlia Lithwick and Walter Dellinger and perhaps other commentators have divided the justices into dogmatic and pragmatic along the lines you see in the Apprendi/Blakely cases) more than to any “conservative” identity. Thus, last year he went all the way with the Sixth Amendment, both in Blakely and the less publicized but also quite revolutionary Crawford v. Washington (argued by the same young lawyer from Davis Wright Tremaine in Seattle, by the way). Hamdi would be another example of how he is unable to resist taking what he views as constitutional principles to their logical conclusions, even if this leads to awkward results in practice. Stopping halfway (something he seems to think Justices O’Connor and Breyer do all too often) strikes him as pussy-footing.
2. There is another cluster of issues on which he just sticks to politically conservative conclusions and bends the Constitution to make it fit. Rather than run through the examples myself, I refer you to Adam Cohen’s very good (I thought) recent editorial piece in the New York Times pointing out Justice Scalia’s occasional judicial “activism” when it suits his politics. Cohen has examples in there besides rewriting the Eleventh Amendment.
Posted by: Ariela | Apr 20, 2005 2:10:46 AM
Since the topic turned, as it inevitably does, to Justice Scalia, I don’t think you can say, assuming he is a conservative (probably a fair assumption) that his jurisprudence always matches his policy preferences. The obvious, and oft quoted, example of Texas v. Johnson is only one example. Look at his repudiation of the administration’s position in Hamdi v. Rumsfeld, where he absolutely knocked the legs out from under the Executive’s authority to detain U.S. citizens indefinitely (and said Congress and not the President is the only body who could suspend Habeas Corpus). Similarly, I doubt that on a personal level Justice Scalia liked State Farm v. Campbell’s award of 145 million against a big business, but he flatly said that the Constitution had nothing to say about the matter.
It seems to me that the general point is valid, but that if there is an exception to the rule it would be Justice Scalia.
Posted by: MJ | Apr 19, 2005 5:28:47 PM
“In other words, my jurisprudence is often in conflict with my politics; I don’t view the Constitution as a perfect document that can accommodate and accomplish every policy goal I prefer.”
Same with me. But notice that we’re both posting anonymously?
Posted by: Anon Person | Apr 19, 2005 3:58:11 PM
Scalia claims just the opposite. He always says, quite felicitously, that “a Living Constitutionalist is a happy man. Every day he comes home and tells his wife that the Constitution said just what he’d like it to.”
This is a habit of mind that must be broken.
Posted by: Yusif Shakur | Apr 19, 2005 2:22:56 PM