Thursday, October 29, 2015
Anthony Kennedy, Kim Davis, lawmakers from nowhere in particular, and legal change while looking each other in the eye
A few concluding paragraphs in John Finnis's lecture on judicial power linked by Michael earlier helped me to understand part of what I found frustrating in reading the recent news story "Justice Kennedy says officials must follow law or resign."
Here is Finnis speculating about the drift toward the subjection of legislative power to judicial power:
Why, then, is the drift everywhere towards the subjection of legislative power, directly or indirectly, to judicial power? Why do many judges in many jurisdictions ever more confidently give judgments assuming the roles of constitution makers and legislators? Answers must remain speculative; the causes are various.
One cause is hidden in that word “jurisdiction” I used just then when I meant countries, political and civic communities of households, families, people. Discourse in law schools and courts increasingly locates its participants in a universe of standards of correct thought and decision, and of the incorrect and unacceptable, which are generated and shared among persons who speak as if they were nowhere in particular. And they can carry on this discourse, and make, commend or recommend the corresponding judicial decisions for whole countries and sets of countries with amazingly little pushback by those whom our constitutions still firmly designate as the makers of the law that shapes its people’s future. Why is some pushback in order? Why was and is that historic constitutional distribution of responsibilities sound?
One way of putting a sound answer is this. Pushback, seeking to adaptively restore that constitutional distribution, is timely and fitting because the members of a properly functioning legislature, chosen by persons who (with their families) will be affected, have to look each other in the eye, even while they are deciding, with no pretence that their decision is anything other than what it is: their personal choice of one kind of future, in preference to all others, for themselves, their fellow legislators, and the people they represent and live among. They do not (and cannot) make the claim that bearers of judicial power must at least profess: that this decision of ours about the law merely or essentially conveys (transmits into the present and the future) positions that have already been settled by our law and are found in it by a learned art (Coke’s “artificial reason”) called interpretation, applying commitments made (at least in principle) back in the past. Or interpreting and applying commitments made (it is professed) over there in a haze of “global law”, made how or by whom no-one really can say, but identifiable and professable as rights and standards even by scholars and judges who in another conversation, eye to eye, might well admit their doubt or denial that there is really any moral right or wrong. – their belief that no value judgments are true: all are “subjective”.
That discourse community – or academic, NGO, judicial echo chamber – treats as strangers the legislators in merely local assemblies such as national Parliaments, and the politicians taken to be persons who are unskilled in that learned discourse’s latest tropes and precepts, and who fail to measure themselves against the standards of esteem or disesteem that prevail in a given decade in that community or echo chamber. There is urgent need for legislators who have retained or regained their sense of constitutional place and legitimacy, and who are aware that this whole style and movement of global juridical discourse and judicial reformism is -- like judicial process even at its best – a defective, inferior way for a historically constitutionally minded people to take responsibility for its own future.
There is a lot going on in these few paragraphs, not all of which directly applies in the United States. But still.
Can anyone imagine Justice Kennedy looking Kim Davis in the eye and telling her on the afternoon of June 26 that she must now accept and effectuate the Supreme Court's new understanding of marriage or else quit her job? Surely he could not do so with no pretence that he had not just changed the law.
Does anyone believe that that Justice Kennedy could describe Obergefell as a decision "about the law [that] merely or essentially conveys (transmits into the present and the future) positions that have already been settled by our law and are found in it by a learned art (Coke’s “artificial reason”) called interpretation, applying commitments made (at least in principle) back in the past"?