JUDICIAL ACTIVISM AND THE RULE OF LAW
Toward a theory of
Selective Intervention
Joseph Tussman
Working Paper 2000-3
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PART ONE
As the Supreme Court goes about its work, distracting brawls
break out among the spectators. The pattern is familiar. When
the court is seen as "liberal," its liberal rooters urge it to
continue its "activism," to continue to reshape the law in a
liberal political direction; while its conservative critics urge
it to remember that it is a "court" and is only to announce the
Law and not to reshape it to the demands of a political agenda.
Liberal theorists develop and defend a theory of Judicial
Activism; conservatives counter with a Rule of Law theory that
denies the legitimacy of judicial policy-making. The one
encourages what the other condemns as a dereliction of duty.
When the composition of the court changes and it is thought
to have become politically conservative, the confusion among the
spectators may seem comical. Conservatives can be heard to mutter
that their enthusiasm for judicial self-restraint and a policyindifferent
rule of law may have been excessive and that, at the
very least, a period of "corrective activism" to undo recent
distortions is needed. While liberals, struggling vainly to
reconcile themselves to the election returns, try to rediscover
the virtues of the argument for a Court "above politics," a court
that diligently refrains from reading its preferred social policy
into the law, and even try to remember how to pronounce "stare
decisis" as they attempt to draw its protective mantle over the
recently hailed but now precarious innovations of the last few
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decades. A quick change of costume for new roles, an attempt to
learn to articulate the strange lines of the once rejected creed.
The perennial conflict between a Rule of Law position and an
Activist position can become very bitter when an important
judicial appointment is at stake. Conservatives may want a
conservative judge, liberals a liberal judge, but something about
the situation keeps them from simply saying so. They want, they
may say, almost must say, a good judge, a neutral master of the
judicial art, who happens, more or less irrelevantly, as a small
bonus perhaps, to be a liberal or a conservative, conceding that
there may something like a good judge quite apart from political
leanings. The argument, as we can remember, is full of fury and,
in its course, may not significantly clarify the conception of a
good judge or free it from its political entanglements.
A crude liberal-conservative dispute may be displaced by an
argument between two conceptions of the judicial function: the
orthodox "non-political" view, and the challenging "activist"
view. Some argue that judges should simply "declare" the law,
others that the judge should remake or reshape it closer to the
demands of justice or utility. The judge is thought to have a
choice as to which kind of judge to be. But this is a misleading
way of putting the problem. The significant question is not
whether it is better to be an Activist than a Rule of Law judge.
It is whether it is possible, even if you want to, to carry out
the orthodox Rule of Law program. It is one a thing to say that
judges, if they wish, can slip into an activist or "policy
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making" mode; it is drastically different to hold that they can
not help doing so for reasons built into the very structure of
any legal order.
This is, I believe, a deeply significant issue about the
very nature of the legal order, and it is not always easy to
understand. So I am going to try to provide a guide to the
battle. I will begin by sketching a simplified but essentially
correct version of the orthodox Rule of Law view. I will then
show, with considerable reluctance, and to my deep regret, that
it does not really work, and that this failure has serious
consequences. I will then see what can be saved from the wreck,
and try to end, all passion spent, on a reasonably constructive
and even cheerful note. It is a bit like trying to continue to
be religious after you have been cured of fundamentalism. Less
zeal, perhaps, but more understanding.
I am not writing this primarily for lawyers, who generally
think they know all about it but who seem unwilling or unable to
explain the mystery to the uninitiated, and who, if pressed, fall
into their familiar habit of referring cryptically to this or
that case or murmuring something about the common law. Lawyers
can be an aggravating problem, but I worry here about us plain
citizens baffled by legal mysteries. So I will try to explain
what it is all about without mentioning Marbury v Madison or Roe
v Wade or any other real "case." I will make up examples if I
think I need them, and I will use plain English throughout, in
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the belief that if the problem cannot be explained that way it
cannot be explained at all.
First, a word about the "Rule of Law," a reminder about why
that seems important. It is not that we really want a world in
which every contingency is covered by a rule or a law, in which
we are overpowered, hemmed in, governed by a mass of imperatives,
left with no anxiety-producing discretion in a world in which an
incorruptible Judge always has the last word. But experience has
taught us that it is usually better to have laws than to live
subject to the discretionary judgments of others. In the end, we
want to have traffic laws rather than to leave it all to police
instructed simply to stop and punish, as they think best, anyone
they think is driving improperly. The real point is the
insistence that, where we grant political authority over aspects
of our lives, such authority be exercised within the constraints
of laws that limit and guide it. When I apply for a permit I
want to have to show that I satisfy the conditions in the law; I
do not want to have to convince an official with unguided
discretion that granting it is a good idea. We are, on the
whole, beyond regarding lawmaking itself as a necessarily malign
intrusion of the mischievous human will (infected with unintended
consequences) into an otherwise benign nature.
To insist that the rule of law be protected by an
independent judiciary is to seek something more than the dutiful
self-restraint of officialdom. We want courts to settle the
question of whether someone has exceeded the limits set by the
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law. And we want Judges to be free of essential dependence upon
the wielders of power so that they can do what they are supposed
to do without being intimidated.
Such a view of the rule of law and an independent judiciary
is something that every American drinks in with his mother's
milk. It is an essential feature of our religio-secular
"constitutionalism":
The Constitution, solemnly sired at a creative Sinai-like
moment in history, expresses the covenant, the social compact,
the agreement, the consent of the governed, that lies at the
foundation of our legitimate political life. In a world weary of
the sway of arbitrary rule it tames raw power into authority,
subdues ruling into office-holding, creating a system of
individual rights and of legitimate but limited governmental
power. It provides for a legislative, an executive, and a
judicial branch, each of which is to perform only its own
distinctive function (oddly echoing Plato's definition of justice
in the Republic). The legislative and executive branches are to
shape politics into law and policy. But the judicial branch,
removed from politics, is the guardian of limits, of legitimacy,
of "constitutionality." It stirs into operation only when there
is a claim that a law has been violated. Does Smith ignore the
"Stop" sign? Does the legislature pass a law about school
prayer? Does the President issue an order about travel to a
foreign country? The Court may be called on to decide whether
Smith violated the traffic law, whether the legislature violated
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the law--the constitutional rule--about religion, about whether
the President exceeded his authority over foreign travel. No
one, no person, public or private, is immune to the demand that
they act within the law. And this is the basis for the special
place of the Court in our scheme of things. It is the guardian
of the system, not a partisan within it. In a gaming culture
like ours it is natural that we think of the court as a glorified
umpire or referee. It is on the field, but it is not a player.
It knows the law and enforces it impartially, calling it as it
sees it, unconcerned about particular outcomes, about who wins or
loses, essentially, we think or expect or hope, above the
transient struggles and quarrels that it adjudicates.
This, or something very much like it, is what is wanted when
the cry goes out--reaching us now from behind the rusted iron
curtain--for the rule of law protected by an independent
judiciary. Without this as a background the very shape of
"judicial activism" cannot even be seen, for it is essentially a
challenge to the conception of the court built into our
legitimizing constitutional myth. Judicial Activism is an
iconoclastic position, shaped, like all such positions, by its
particular icon. While I have given a brief sketch of the
familiar myth--if it can be called that--I must here emphasize
the feature most subject to attack, the point of greatest
vulnerability--the "separation of powers."
The phrase "separation of powers" does not appear in the
Constitution itself, but it is taken for granted as part of its
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theoretical context. There is nothing terribly mysterious about
it. In its pure form, each branch of government is to exercise
only the kind of power that has been given to it, not the kind
that has been given to another branch. So, we say, the
legislature makes policy judgments and embodies them in laws; the
judiciary is not to judge the wisdom or value of the laws but is
only to say if they are violated or if they themselves violate
higher laws. That division of labor seems clear enough. Ends,
goals, policies, values, and the means of pursuing them--these
are the concern of the legislative and executive, the "political"
branches. It is not for the judicial branch to decide whether
abortion or capital punishment or affirmative action are good or
bad things and should be prohibited or permitted or required; it
is only to say whether they are constitutional. It is not, in
short, supposed to make policy or decide policy questions.
If this is the crucial point of the traditional or
ceremonial view of the Rule of Law, the view of Judicial Activism
is that judges make policy all the time. And not just because
judges don't want to do what they are supposed to do but because
it is impossible to do only what they are supposed to do in the
mythic role. The serious argument about Judicial Activism is an
argument about the necessity, the legitimacy, and the scope of
policy-making by judges. Activism thus involves, as we shall see,
a rejection of the theory or practice of "separation of powers."
*********
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Let me begin by simplifying the traditional view into a few
essential propositions:
First, there is a special class of "judicial" questions to
which the court is limited.
Second, there are "correct" answers to such questions.
Third, it is possible to find judges capable of performing
the function of providing correct answers to the
proper questions "objectively" or "properly" (not
infallibly).
Taken together, these constitute a view of deceptive
simplicity, but they go to the heart of the matter. If there is
no distinctive class of judicial questions--like, has a law been
broken?--the court will indeed come close to being "a Kadi
sitting under a tree" dispensing its wisdom about a variety of
matters, not simply upholding a rule of law. If there is indeed
no "correct" answer, the "rule of law" simply serves as a cover
for unconstrained judicial policy-making, the search for good or
moral or wise answers by those not elected to try to find them.
And if judges, because they are human and socialized and all
that, are necessarily conscious or unconscious partisans, why
cling to forlorn hopes of judicial objectivity or neutrality?
So, if it can be shown that the court cannot confine itself to
rule-conformity questions or that there are no "correct" answers
to such questions, or to many of them, or that Judges cannot be
seen as tolerably good correct-answer-seeking animals--the case
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for activism seems to triumph without further ado. The first
stage of my argument will consider these matters.
I. Proper Judicial Questions
The argument goes: There is a limited range of questions
appropriate for a court. They are all of the form "Is X in
conformity with the Law?" The distinction is between questions
of rule-conformity and questions of "utility" or "value"--between
"Is X in conformity with the law" and "Is it better to do A than
B?" Thus, the question of whether it is a good idea to keep
students off the basketball squad if they fail a single academic
course is a question of policy for the school board. If a
student takes the school board to court, the question for the
court is not whether it agrees with the Board about its policy
but whether the Board`s decision is in conformity with some
relevant and over-riding law. Or, if a State adopts capital
punishment for murder in the belief that it will improve the
general quality of life, the court is to decide only if the
State`s action violates some law by which the State is bound, not
to overrule the State if it has a different view about the value
of capital punishment. The judicial question is one of ruleconformity
not of wisdom.
These are not just different questions, they are different
kinds of questions. And they evoke two different kinds or modes
of argument--the casuistic (or Talmudic), and, what might be
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called loosely, the pragmatic or utilitarian. These are the two
great and significantly distinct kinds of argument that we are
all constantly involved with, and it is necessary to distinguish
them because, as you can guess, the Court is supposed to stick to
one of them. Casuistry is the art of applying general rules to
particular cases and, in the process, where necessary, resolving,
by interpretation, apparent contradictions. The argument that a
fetus is a "person," that abortion is the killing of a person and
thus a violation of an overriding law against killing persons is,
without aspersion, a casuistic argument. (Pascal's attack on
"rule twisting" Jesuits in the 17th Century gave "casuistry" a
bad name.) The argument that each person is sovereign over his
or her own body and that an abortion decision is an exercise of
that sovereignty is also a casuistic argument. The argument that
abortion is an effective means of population control and tends to
increase--or decrease--happiness is, by contrast, a pragmatic or
utilitarian argument. It is obvious that if courts are to
consider only questions of rule conformity, the mode of argument
appropriate for it is casuistic, and long policy arguments in
briefs or in opinions ought, at least, to raise eyebrows.
I pause for a passing nod at a natural and significant
question: Even if we can distinguish these two kinds of question,
why should courts or judges confine themselves to one kind, and
the least interesting and important kind at that? Why should
they limit themselves to finding that something is in accord with
the law or "legal" when it is clear that it is a stupid or
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harmful law that can, with the available techniques, be
effectively nullified? Why not simply act on the familiar
principle that you are always to do what you think will promote
the greatest happiness? The answer--that it is not your job to
impose your wisdom on the situation, that that is precisely what
the separation of powers means, that you are just to deal with
legality and let others, usually elected and answerable, deal
with the more important matters--this answer may seem a pedantic,
crabbed response entailing a sheer waste of wisdom. If that's
what "separation of power" means, why respect such a peculiar
principle...? The reply would have to be a long one, aimed,
among other things, at reaffirming the significance of fairlyadjudicated
law-abidingness and at curbing the judicial desire to
do more good than the job calls for. A reminder, as someone
said, that while Judges are to be lions they are to be lions
under the throne.
Let us now examine the conventional assertion that the
court's task is to deal only with rule-conformity questions. I
will try to show how the proper judicial question, "is X in
accord with the law?" seems inevitably to turn into or be
displaced by the naughty question "Is A better than B?"
(demanding a "policy" response), to show, presumably, that the
rule of law program cannot be carried out.
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That the court cannot simply apply the law because the
laws are contradictory.
The argument is that if laws "contradict" each other, give
conflicting instructions, you cannot simply apply the law but
must decide which it is better to follow, which is the more
important, which weighs more heavily in the scales as you
"balance" the conflicting values.
Suppose that the constitution or the laws authorize the
government to do such things as regulate commerce or wage war or
run a public school system. Suppose also that the government is,
by the constitution, forbidden to abridge the freedom of speech.
Imagine that the government, as authorized, enacts laws that
punish deception in advertising, or the revealing of defence
secrets, or that require pupils to read assigned books and submit
to recitation and examination. Do not such laws abridge the
freedom to speak as, and only as, one pleases? And is not the
government forbidden to do that?
Confronted by apparently conflicting rules--and we are
confronted by them everywhere--what are we to do? We cannot
simply "follow the rules" since what we do in obedience to one is
a violation of the other. A law punishing deceptive advertising
is authorized by the grant of authority to regulate commerce; it
is prohibited by the law about not abridging free speech.
Obvious simple principles may not help--for example, that a grant
of power extends only to the edge of a prohibition as, "You
may...but only so far as it can be done without...." You might
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accept that as it subordinates the power over commerce to the
protection of free speech. But would you also hold that
government may try to win the war provided it can do so without
abridging speech to keep the invasion date secret? Or try to
educate children but only if it can be done without making them
read or answer questions on exams (self-incrimination too!)?
"Prohibitions mark the limits of powers" is a plausible
principle, but you cannot ride it like a bull into life's china
shop. On the other hand, if a prohibition doesn't limit a power,
what does it limit? And when? And how are we to decide that?
In this common situation, faced with apparently conflicting
rules we find ourselves torn between two paths--the path of
casuistry or "trying to make sense" and the path of utility or
value maximization or, to use a familiar judicial term,
"balancing." The casuistic instinct is to try to show that what
seems like a contradiction is really not one, that a proper
reading of the law will remove the apparent conflict and restore
the situation to one in which it can be decided whether or not
something is in accord with the law, properly read. Thus, it
might be discovered that "freedom of speech" in the First
Amendment is properly read as meaning the freedom of "political
speech" and that the regulation of "commercial speech,"
advertising, is not barred by the amendment. Or that the First
Amendment applies only to adults and, therefore, not to minors in
school. Or that the War Power enjoys exemption from peacetime
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constraints. These are oversimplified quasi-hypothetical
examples and I don't want to agree with or argue them.
The other path tends to take the apparent conflict as an
example or symptom of human and social incoherence illustrating
once again that a yearning for consistency is a petty obsession,
that the law is a charming patchwork, not a coherent scheme, that
it makes no sense to try to make sense out of a situation that
makes no sense, and that the thing to do when confronted with
these "contradictions" is simply to decide what the best thing to
do is, forego the hairsplitting, and "balance" the competing
values on whatever scales you happen to have. As, for example:
curbing advertisers is more important than letting them speak
freely; or, perhaps, protecting free speech is more important
than punishing commercial deception, winning the war is more
important than free speech; educating children is more important
than letting them take the First Amendment with them through the
schoolhouse gate...making, in each case, a "balancing" or policy
decision.
We don't need real "legal" examples to get the point. We
could just as well consider a "Thou shalt not kill" sign at a
church barbecue. You might explain to an alert bewildered child
that the commandment really means "Thou shalt not murder a human
being" and doesn't, therefore, apply to the animal whose ribs we
are about to gnaw--starting her down the primrose path of
casuistry. Or if you want your child to eschew a life of
quibbling you can start her down the path of pragmatic balancing
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by pointing out that there are no "absolutes," that "Don't kill"
is a fine idea but so is "Man does not live on bread alone" and
you have to balance respect for animals against our need for
protein and it's O.K. to have a barbecue if you don't eat too
much or waste anything--having her complain to her analyst years
later, that you taught her to be a calculating compromiser.
Confronted by apparently conflicting instructions we can try
to unpuzzle the matter by making distinctions, resolving (or
creating) ambiguities, clarifying meanings so that we can ask, in
the end, "does the regulation of advertising violate the rule
that says, or really means, you cannot abridge freedom of
political speech..." and look for a correct answer, in this case
"No!," even from a judge who believes in the free market. That
is, if there is a respectable art of figuring out, or
discovering, what the rule "really means."
What something really means! What it means as "properly
interpreted," as having been put through the interpretive mill.
There is an interpretive art, not always regarded as respectable.
I remember an exasperated Divisional Commander driven to
including in an order a stern "This is to be carried out and not
interpreted." It is an art or exercise that has a fascination of
its own, a deep pleasure in fitting pieces together so that
everything suddenly makes sense. "Makes sense" or, alas, gets
you out of it, or lets you do it in spite of what it seems to
say. Is it an art of cognitive discovery, capable of going
wrong, of falling into misinterpretation, subject to heavy
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constraints of objectivity? Or is it, through and through, a
partisan art, more or less clever or smooth or strained or
ingenious, but never able to claim, beyond enabling or disabling,
being really right or objectively correct. Is it like
deciphering a coded message, so that you know when you've got it
right, or is it more like a reading of a musical score? And who
says "speech" in the First Amendment means "political speech" and
what makes you think that's the right interpretation? Or that
there is a "right" interpretation? Do you applaud it because you
want to restrict advertising but not the criticism of
government...?
It is a part of the burden of the conventional rule of law
view that, where interpretation is needed, as it usually is (and
I pass over the question of whether all reading, even when you
think the meaning is plain or clear, is "interpreting"), there
are correct and incorrect interpretations. This is a terrible
hurdle in its path since it seems to be widely held that where
two interpretations are possible neither can claim to be correct-
-at least not in this democratic age in which one person's
interpretation can be no better than another's. I defer the
pursuit of this problem, noting only that the attempt to resolve
apparently conflicting orders into an unambiguous rule plunges us
at once into an interpretive quagmire, forced, if we wish to
maintain the traditional view, into a defence of interpretive
"correctness." Not, perhaps, hopeless, but difficult enough to
tempt one into skipping a difficult journey with an uncertain
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destination and settling for the simpler--and possibly
unavoidable--life of "balancing" competing values. If, in the
end, the test of an interpretation itself is how well it serves
your purpose, not whether it is "correct," why insist on being
dragged kicking and quibbling into the world of subjectivity and
partisanship, clinging to vain hopes of an objectivity or
correctness that went out of style when it was announced that
"God is dead!"?
So one great difficulty with the first item in the rule of
law creed is that, to resolve apparent contradictions, " Is X in
accord with the law" will become "is X in accord with the law as
properly interpreted," in which the propriety of the
interpretation itself may be thought to rest on whether the
interpretation supports a valued result. To the extent that the
question becomes "is interpretation A better than interpretation
B ?" instead of "is X in accord with the rules?" the round goes
to activism. To avoid that result it must be shown that the
"correctness" of an interpretation is grounded in something other
than its policy consequences. Not hopeless, but difficult.
I should point out that while casuistry or interpretation
has its problems, "balancing," frequently invoked in judicial
opinions to deal with contradictory or incompatible rules, while
suggesting scales and weights and objective measurement is
something like a conjurer's operation. "We now must balance the
value of A against the value of B," says the court with a hurried
glance at its invisible scales, "and A is clearly weightier than
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B!" Whenever the court says it has a balancing problem you know
that the rule-correspondence question, the question of whether
something squares with the law, has, at that point, given way to
a pronouncement of policy or value-priority. If you look for it,
you will be surprised at how frequently this happens. "Balancing"
is easier than following a twisting path in search of the correct
interpretation.
So: In any large set of rules there will always seem to be
contradictory or conflicting orders. In some cases the conflict
can be resolved, casuistically, in a way that strikes almost
everyone but the most rabid partisan as obvious. It is not
necessary to rush from the mere appearance of contradiction into
the balancing act (although if you want to, there is always a
pretext). Having said that, it must be granted that not all
contradictions or conflicts can be made to vanish by the exercise
of casuistry. In such cases some policy decision about priority
or importance or value needs to be made, and that is not a ruleconformity
decision. For the Rule of Law "fundamentalist" this
is something of a scandal, and I will return to the problem in
due course. I note here only that if or where the rules are in
conflict it is not possible to simply follow the rules or stick
to rule-conformity questions without first resolving the
conflict, and that process is a very slippery one and seems to
make it impossible for the court to stick to its own "proper"
question.
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"Reasonable" and other weasel words
Another problem: There is a class of "soft" words whose
appearance in a law is said to introduce or even force policy
considerations.
"Reasonable" is a familiar troublemaker. It appears
frequently in laws--as when someone is given the authority to
make reasonable regulations about something. Even when it is not
explicit, it is sometimes held that all authority is granted with
the implicit proviso that it be exercised reasonably, or even
that a "due process" clause expresses that demand. So it is not
uncommon that a court will find itself considering whether a
government agency or agent has violated the law by exercising its
authority "unreasonably." The reason I call this troublesome is
that, as we know all too well, "reasonable" is confused with
"wise," and when that is done a policy question has been
substituted for a rule-conformity question.
For example, a school board enacts a rule (a reasonable
rule, it thinks) that a student cannot play basketball if he is
failing a single required course. We can imagine the argument
that had taken place--the need to emphasize academic work, to
improve classroom performance, to come down strongly or not so
strongly, etc. There are harder and softer options, but in the
end, the advocates of the one-course rule prevail. A student
fails, is kept off the team, goes to court. "Has the Board acted
reasonably" is the question. The judge may well think it too
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severe a rule, as likely to increase the drop-out rate, as
ruinous to the hopes of the fans, and he may even be right in
supposing that on the whole it would be better if the Board were
to adopt a more lenient rule. Had he been on the board he would
have voted against the one-course rule. Nevertheless, it would
be ludicrous, if, as a judge, he ruled against the board.
"Did the board act reasonably" is the question. Not, "Did
the board do what I think it should have done." Not, "Did the
board act wisely." The Supreme Court has repeated to the edge of
weariness that the court is not to substitute its wisdom for the
judgment of the responsible agency, but the temptation seems
irresistible. On questions about which reasonable people can
disagree some will be wiser than others, but the court is not to
declare that the reasonable view it may think unwise or less wise
should, therefore, be declared unreasonable. We are, I assume,
beyond the familiar urchin view that " reasonable is what I think
should be done."
Besides "reasonable," there are words like "proper" or "due"
or "appropriate" or "fair" whose appearance in a law seems to be
an invitation to a judge to take a hand in the making or
correcting of policy. In all such cases it is to be remembered
that the court is not being asked to decide what to do about a
problem but to judge whether someone with primary responsibility
for the matter--a legislature or an administrator--has exceeded
the limits loosely suggested by these troublesome words that
signal a delegation of responsibility more than clearly defined
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guidance. So, one can acknowledge that the board has acted
reasonably even though one would have acted differently. But
admittedly, there is a very hazy zone that cannot be conjured
away, and I do not intend to try to conjure it away. "Is this
reasonable enough?" can seem close to "Is this good enough?" and
to the extent that this is so it will trouble anti-activists that
words like reasonable are scattered throughout the law and
constitute a standing invitation to judicial policy-making.
The attempt to eliminate such words, to tighten things up,
to get rid of ambiguities is understandable but generally
misguided. Ambiguity has important functions. It is not always
a vice, just as clarity is not always a virtue. The point about
these expressions is that they are ways of postponing decisions
that probably should be postponed, of delegating decision-making
scope to others more likely to make informed judgments. To say
"make reasonable rules..." relieves you of the hopeless task of
trying to spell it all out here and now. We may have to abandon
the view that since we now know it all we had better make sure
that everything is clear and nailed down tight because from this
high point it's all downhill. But it is wiser, I am sure, to
continue to make use of ambiguity, even though it may create some
problems for rule-of-law fundamentalists.
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The problem of new instances
But the difficulties created for the strict opponents of
judicial policy-making by apparent contradictions and by words
like "reasonable" are nothing compared to the disasters that open
unexpectedly at their feet in the most ordinary of situations,
unmarked by paradox or contradiction, undistinguished by the use
of mushy language or by flaws in expression. In the normal
course of events it is necessary to decide whether or not
something falls under a rule. A law governs the taxation of
religion; is that a religion? Is a skateboard a "vehicle?" Is
delivering a message engaging in transportation? Is a live-in
same-sex lover a "spouse?" Is a fetus a "person?" There is no
need to multiply examples. In a changing world we are always
being faced with the question of whether something falls under a
rule, is another one of "those," to be treated as other things of
the same sort. (The morning news reports that the Court is going
to have to decide if a "cordless" phone is a telephone. With no
wires to tap is it O.K to tune in? ) We may think we know what a
"spouse" is and have provided, by law, that an employee's spouse
is covered by the medical plan. But is Smith's live-in
homosexual lover, Jones, a spouse?
I will linger over this example. The common sense, the
naive view, would be that a court is to discover the meaning of
"spouse" and then see if Jones is one of them. The same common
sense would consider it a scandal if the court were first to
23
decide whether Jones should receive the benefits and then adjust
the meaning of "spouse" to get the desired policy-result, the
very model of the crime of activism. So we will, in a quick
search for the meaning of "spouse," round up the usual suspects.
We want to see if the court can succeed in doing what, on the
common sense view, it is supposed to do.
Definition
A handy definition would seem to settle the matter,
except that, as in most cases, the word is not given an
authoritative definition. Or if it is, it might still leave the
matter unsettled--as might a dictionary. The one on my desk says
"a marriage partner; a husband or wife." But what is "marriage,"
or "wife," for that matter? We are unlikely to have a definitive
specification of "spouse" (or religion, or commerce, or
telephone, or speech...)--neither an exhaustive list of the
instances of "spouse" nor a specification of the properties that,
possessed by anything, determines its membership in the class in
question. We may regret this and resolve that all terms in the
law should be carefully defined, but it will turn out that for a
variety of reasons this cannot always be done, and, in spite of
the plausibility of that familiar battle-cry "Define your
terms!", should not be seriously attempted. For much the same
reasons as I mentioned regarding the desire to get rid of
ambiguous words like "reasonable." We would be foolishly forcing
24
ourselves to make decisions we are not prepared to make, are
better off not making.
Usage or precedent
Let us suppose that no dispute-settling definition is at
hand so we turn for help to customary legal usage. For example,
consider "religion," protected in the Constitution, and not
defined. Some time ago it was held to cover religions A and B and
C. Then something else raised its head. "No need to define
"religion," says the Court, "we can tell that this is another
one"--adding D. So now we come to this new candidate, E. No
definition of religion; not on the list. But is this another
religion? Is E like A,B,C,D? How much like? Essentially like?
Sufficiently like? How like and in what respects it has to be
like in order to be another one is a question that presents
difficulties. Does E "belong" with A,B,C,D? and therefore...or
"should we treat E the way we treat A,B,C,D?" Are these the same
question? Are we to discover whether or not E "belongs" with
A,B,C,D, is really another one? Or are we to decide whether or
not to treat E as we have treated A,B,C,D?
"Spouse." Some time ago the law provided benefits for the
wife of a public employee. Then, as more women took jobs, and
after a big fight (What! Benefits for idle husbands!) "wife" was
changed to "spouse," so that both husbands and wives were
covered. And now? Same-sex live-in lovers? It is, of course,
25
somewhat unprecedented, but the current range of precedents does
not settle whether the rule extends to this situation since, as
we know, the reach of a general term is not limited to already
acknowledged instances. So, we are to consider whether the livein
same-sex lover is a "spouse."
We compare homosexual couples with heterosexual married
couples and discover that they are similar in a number of
respects. They differ, in this case, in not being of different
sexes. But is that difference crucial? Is it essential to being
a "spouse" that you be one of a heterosexual pair? The answer,
oddly enough, is not altogether obvious, any more than the
question of whether a belief in a universe-creating God is a
necessary or defining trait of "religion." Is it really a
spouse, really a religion are questions that take you into the
thickets of "classification"--real, conventional, merely
convenient for this or that purpose or as somehow carving the
world at the right joints. Can you discover as a fact about the
world, that the homosexual lover is not really a spouse? Or, in
the end, must you decide whether to treat him or her as one for
reasons that are not discoveries about meaning but considerations
of policy.
In some cases there is something I call "intuitive strain."
If we navigate more or less easily from Catholic to Protestant to
Jew to Mormon (not a religion but a criminal conspiracy a Supreme
Court judge once said) to Unitarian and Humanist, including them,
in turn, under "religion" whose freedom is protected by the
26
First Amendment, we might feel that proposing Communism as a
"religion" is a strain on one's hospitality. Or : You are in the
"delivery" business if you deliver furniture. If you deliver
books? Yes. Letters? Well, ok. Letters by Fax? Messages? By
telephone? Speeches, by television? No, wait, don't be silly.
"Delivery" just means... So, "spouse" may grow from wife, to
husband or wife, to common law partners ("unmarried" but with
three children) ... to same-sex partners? Admittedly, some
strain, although we may feel the strain at different points.
"Intuitive strain" ( or "stretch" ) is a sloppy but not
insignificant notion, full of difficulties that may prevent its
being taken seriously. Its appearance here--how much "stretch" is
tolerable?--is an occasion for taking up the question of "strict"
construction and the contrast between strict and liberal (or lax
or broad) construction or interpretation. In deciding whether to
admit a new candidate to the class in question, we do so on the
basis of "similarity." How similar? and similar in what
respects? "Strictness" is the tendency to be grudging about new
admissions, to insist on greater similarity, especially with
respect to any characteristic that, if dropped, generates
intuitive strain. Thus, the strict constructionist might insist
that heterosexuality is an indispensable condition of spousehood.
A liberal or broad constructionist might say that the couple is
committed, caring, economically intertwined, etc--in many
respects like ordinary married couples and that a spouse is
really like a partner or a friend and need not be one of a
27
heterosexual pair, that "sexual orientation" is not a necessary,
definitive trait of "spousehood." What is at stake here is
inclusive generosity. A strict constructionist would be against
stretching "spouse" to include Jones; a broad or lax
constructionist might not be. Put crudely, "strict" demands more
similarity ; "liberal" is satisfied with less. The latter is more
tolerant of "stretch." (Put otherwise, "strict" tends to increase
the number of necessary or defining conditions, "broad" or
"liberal" to decrease them.)
The question is, are we to consider strict construction
correct and, therefore, required by the Rule of Law? Alas! It is
not that simple. Strict and broad are merely two modes of
interpretation and neither can claim "correctness" across the
board. My liberal friend is a broad constructionist when it comes
to interpreting "freedom of speech" in the First Amendment to
include not only "speaking", but picketing, or marching, or
sitting down in the middle of the street, or burning the flag--
almost anything as long as it is a way of "saying" something. On
the other hand, suggest that "treason" should be stretched a bit
to include not only giving aid and comfort to the enemy in time
of war but to include sticking up for the potential enemy in a
period of cold war--and he will rush to embrace some rule about
how criminal laws should be strictly construed, not stretched.
We really need three notions. Broad, strict, and correct; and
unfortunately, neither of the first two is always correct. So,
although some opponents of activism seem to think "strict" is
28
always right, it is only a mode of reading, and a commitment to a
particular mode of reading is neither inherent in the idea of the
rule of law nor explicitly mandated by the constitution. If,
however, you don't want to accept the idea that there is a
"correct interpretation" you are left with merely competing modes
of interpretation. And either you choose the one that gives you
the result you want ("strict" if you want to exclude Jones,
"broad" if you want to include him)--the activist scandal--or you
apply some general theory about use of modes of interpretation
regardless of results. That might seem a rather pedantic, and
even questionable, gamble. In the end, instead of an across-theboard
commitment to a single mode of interpretation we will find
ourselves mapping the conditions under which the use of one or
another interpretive mode is called for--a policy-driven venture
in political theory.
The upshot is that the determination of the crucial defining
character (of telephone or religion or spouse ...) is not a
simple matter of cognitive inspection. The problem arises over
the question of subsuming a candidate-instance under a rule.
Grudgingness or strictness is not always correct, and the
temptation is to substitute the question "should we decide that
Jones is a spouse?," clearly a policy question, for the subtly
different question, "Is Jones really a spouse?" This temptation
is almost irresistible in view of the complexity of the latter
alternative, and we can see why what I have called the
commonsense or naive expectation--that first we find out what
29
"spouse" means and then we decide whether Jones is one of them--
is likely to be deeply disappointed. Sooner or later, the
lurking policy question pounces and "is X in accord with the
rule" gives way to "Is alternative A better than alternative B".
This situation arises with different degrees of difficulty
whenever the candidate at the door seeks admission to the club.
Intent
But you must be impatient for me to get to this point.
Surely, what "spouse" means, whether it includes the live-in
same-sex lover, is a question of what the law-maker had in mind.
Behind the law lies the intent of the lawmaker, and if there is
some ambiguity about what the law means are we not to try to find
out what was intended? Is not the correct interpretation the one
that expresses the intent of the law-maker? This seems so
plausible, so obvious, so undeniable, that it will not come as a
surprise that the search for legislative intent has been a major
legal industry. Our question here is with whether we can find in
intent or in "original intent" an alternative to judicial policymaking
as when, avoiding questions of strict or liberal
construction, we can correctly answer the question "Is Jones a
spouse" by looking for the intent of the lawmaker or legislature
or Board of supervisors.
The answer is "no," or at least "not entirely." I put aside
some very intriguing arguments to the effect that "intent" is, in
30
principle, altogether irrelevant, that the law should be taken as
a public artifact severed from any special connection with its
maker, that it should make sense on its own, standing on its own
feet, unmarked by the traumas of its creation. However it was
created you are not to try to seek out the (often elusive)
creator and demand elucidation as if the creator meant more than
it said. You have the words; make what you can of them; and if
in doubt, don't look back but interpret them so as to further the
good as you see it. "It is what is said that counts, not what is
intended," said a well-known Judge. (Unfortunately, the same
Judge can be found to say "What he had in mind is what counts,
not what he said." Legal maxims often come in pairs; pick the
one you need!)
I will not pursue this line, although it is powerful enough
to merit more than casual dismissal. And, of course, it lends
support to the activist view that consequences are what count.
It may be a tempting short-cut, and I do not really dismiss it.
But I am going to try to show that even if we consider that we
should eke out the law with the intent of the lawmaker there are
discouraging complications that will keep the anti-activist from
finding happiness or salvation in "intent" or even "original
intent."
31
1) The mystery of multi-person statements.
It is one thing, when we think of law as the command of the
Sovereign, to think of James or Charles or Napoleon whose command
we are to take as law. "What did he intend?" if it is not clear,
is at least an intelligible question. But the law in a polity
like ours is not the will or command of a single natural person.
What a legislature intended or had in mind is not the same thing
as what I may have had in mind when I voted for it, nor what a
canny draughtsman may have had in mind, nor what the most zealous
advocate or the most grudging supporter may have had in mind. The
"intent of the legislature" cannot be identified with what a
particular legislator or even a group of legislators may have
been thinking. (I seem to remember that a member of Parliament is
not permitted to testify as to what Parliament may have intended
by a law that he participated in passing.)
While some will hold that only a particular individual or
single person can be said to intend or mean something or have
something in mind or be said to have a mind at all, I am inclined
to flirt a bit with the un-individualistic notion of collective
intention. That is, I feel no need to apologize, or to hasten to
explain away or banish ghosts from "we think" or "they thought"
or "the committee intended" or "we decided." I find no terrible
sin in saying "the legislature intended" or "the Court meant"--
even though no one, including a member, is authorized to speak
for the court in explaining what the court really meant beyond
what it said.
32
But even if one accepts the idea of legislative intent, how
you would discover it is something of a mystery, and its
complexity keeps the appeal to it from being an easy solution to
discovering what the lawmaker or enactor of the First amendment
may have intended by "religion" or "an establishment of religion"
or the enactor of the Fourteenth by "person." When the meaning
seems clear, it is not because of "intent"; when you are driven
to look for the collective intent you are not likely to find a
conclusive answer. Not even a letter from Jefferson establishes
that "they," whose action is what matters, intended what he may
have intended about "a wall of separation between church and
state."
2) Historical vicissitudes and "Original" intent.
The original intent, if I may use that expression, of those
who enacted the First Amendment was clearly not that no
government should abridge the freedom of speech, but rather that
the newly formed Federal government was not to interfere with the
States, which retained the power to regulate speech as they
thought best. There is really no serious dispute about this; it
even says "Congress shall make no law..." Then, after the civil
war, came the Fourteenth amendment, which restricts the power of
the States in some respects, although it does not mention the
Bill of Rights or the First Amendment. Some have argued, rather
creatively, that the Fourteenth somehow "transmits" the Bill of
Rights, or rather "transmutes" it into limitations on State as
well as Federal powers. In addition to the overwhelming
33
difficulty of finding out what was "intended" by the adopters of
the Fourteenth, it is almost impossible to say how such
transmission nullifies or modifies the "original intent" of a
Bill of Rights that certainly cannot be held to mean the same
thing when it denies powers to the Federal government only,
leaving those powers to the States, and when it is to be read
suddenly, years later, without explicit reference, as denying
power to all government. You may be able to make sense out of the
situation, but it won't be by looking for "original intent,"
either of the 1st or of the 14th Amendments. The operative
"intent" of a long-lived law is not always (to say the least) the
same as the "original" intent, and the answer to what a law is
now properly taken to mean is not always discovered by historical
research.
"Original Intent" seems either a redundant way of saying
"intent" or, if it is a recognition that what a law means is
subject to some historical battering, it is a way of reminding us
that we do not always--a century or a decade later--interpret a
law in the light of the original intention. To say that we should
always stick to--or return to--the original intent is not merely
to utter a conservative dogma. It is a radical proposal of
questionable merit. Long established usage may be discovered to
be a departure from original intent, but it is not at all clear
that a return to the original intent should follow that
discovery. For example, the current interpretation of the
"establishment of religion" clause is a wild departure from the
34
"original intent." It is also probably the case that the
adopters of the Fourteenth did not intend to include
"corporation" under "person." But it would take not an activist
court but a hyper-active court to announce a return to the
original intent in such cases. At some point, established usage,
on almost any theory, displaces original intent--just as current
linguistic usage displaces and need not blush before the archaic.
Historical questions about fundamental laws should remind us
about how difficult questions about the intent of the "amending
power" are. Research on these matters is usually inconclusive
and policy-driven in the bargain. On less ancient or fundamental
laws, "original intent" really shrinks to "intent" and on the
"intent" question, as I have suggested, the mystery of multiperson
utterances will keep us from finding in "intent" the
infallible cure for legislative ambiguity.
3) Intending the instance and intending a class
The context in which the 14th Amendment decrees that no
"person" shall be denied the equal protection of the laws clearly
suggests the intention to cover black persons. But "person"
covers more than "black person" and let us even suppose that the
Amenders "intended" more. But what more? How much more? They
intended "person," including black person. Did they intend
"persons of Japanese ancestry?" Female persons? Minor persons?
Artificial persons? Fetal-stage persons? Illegal alien persons?
While it is clear that more than "blacks" was intended, the
35
attempt to settle the scope of "person" by finding out what the
Amenders "had in mind" or "intended," is a hopeless enterprise.
The law says "person," presumably the class of persons; the class
of "persons" includes black persons; it includes more than black
persons; we don't know how much more; and we cannot find out how
much more was intended by that amorphous mass by whose action the
Amendment was passed.
Consider how you would try to discover whether "person" in
the 14th Amendment was intended to include "fetus" and you will
probably discover that you will assess every argument about
"intent" in terms of whether it is compatible with your policy
view about abortion. You will not know how to decide about the
defining characteristics of "spouse" without knowing how it
squares with your view about whether a same-sex lover should be
treated as a wife or husband. Such a simple thought-experiment
conducted in diligent privacy will reveal the force of the
activist insistence on the determinative power--and the
unavoidability--of the policy question.
This is a very short brush with problems plaguing the
attempt to apply an existing law or set of laws to a changing
world. They are, as anyone who has grappled with them knows,
fascinating problems, and I do not pretend to do full justice to
them here. I am trying to show how the first item of the Rule of
Law Creed--that the question for the court is always of the form
"is X in accord with the law"--seems to turn into a policy
instead of a rule-conformity question at a surprising number of
36
points, so that a court--even without policy-making ambitions--
finds itself always confronted with questions of policy.
Contradictory rules, soft words like "reasonable, claims to the
status of new instances (a fetus is a "Person"; a live-in samesex
lover is a "spouse...") present questions not simply answered
by the "discovery" of what the law requires untarnished by
"decisions" about what the law should be taken to mean. Not even
"strict construction" and "original intent" can steer us away
from the rocks of policy to the tranquil waters of "what the law
really requires." So that the very foundation of the Rule of Law
creed--that judicial questions are all simply rule-conformity
questions--seems, at the very least, to be very shaky, if not
absurd. We begin by asking "Is X in accord with the law?" and
soon, at a number of different points, we find ourselves
deciding, having to decide, whether A is better than B.
I pause here to mention two general points. First, this is
a highly simplified account of a generally complicated legal
reality. If I had been able to successfully defend the
fundamentalist Rule of Law view in these artificially simple
terms, I would invite the charge that in the more complex "real"
world it would be a different story and that the simple account
is misleading. But if even in a simplified form the story doesn't
hold up there is no point to considering complexities that would
make the outcome even more obvious.
Second, there is the question of whether all these
ambiguities or difficulties are marginal, whether they exist only
37
at the fringes of the system or are, on the other hand, pervasive
features of the legal order. The answer is that it is not some
local flaw or accident that creates these opportunities for
judicial policy-making. It is, rather, the focussing of
attention at a particular point for some political or social
reason that makes that point seem subject to unexpected
ambiguity, in need of interpretation and all the rest. It could
happen anywhere in the system, not merely at some unguarded weak
spot. And this precludes a possibly attractive easy way out.
That is, we cannot really say that most of the law is unambiguous
and that activism is a merely marginal option.
II. Correct Answers
The second item in the simple rule of law creed--that to the
proper rule-conformity questions there are correct answers--might
seem so obvious that it is puzzling that I bother to list it. You
either exceeded the legal speed limit or you did not, and the
court is supposed try to come up with the correct answer.
Sometimes it does, sometimes it doesn't. The justification of
procedure is that it helps, the objection to procedure is that it
impedes, the discovery of the correct answer. In principle, in
an unKafkaesque legal order, the statement that you have violated
the law is true or false. A law may be wise or foolish, fair or
oppressive, morally worthy or unworthy of obedience, but, unless
it is so flawed that it does not count as a law, there is a
38
correct answer to the question of whether it has been violated.
Common sense, at whose touch so many complexities vanish, will
insist on it. Rule of Law fundamentalism insists on it.
Nevertheless, even this simple clarity will become clouded.
The force of this position is seen most easily when we
consider a single rule or law disentangled from its context. Did
you break a law--did you fail to stop at that red light, did you
limit someone's speech, did you not give timely notice...someone
adduces a rule or a law you have broken. You either did or
didn't. The answer that you did is either true or false. There
is a correct answer.
But now things get confusing. In spite of all the work that
goes into formulating a simple "question" for the court out of
the complexities of an actual dispute or conflict, we will find
that the question may become "Did you violate the law," not a
law. The distinction is between a single rule and the system of
rules of which it is a part. A student may violate a school rule
about not wearing armbands in class. But that rule has to
accommodate itself to other rules--the First Amendment, for
example--and by the time we take into account the impact of the
whole system of rules brought to bear on the application of the
simple rule we began with, we, or a court, may find that the
student did not step outside the bounds of the legal order, is
not in violation of the law after all. He broke the rule about
armbands; he did not break "the law," taken as the system of
39
relevant rules and operative principles, properly interpreted and
reconciled.
The question now is this: There seems to be a correct
answer to whether what the student wore violated the dress code.
But is there also a correct answer to whether, taking everything
into account, the student violated the law? I do not mean a
"wise" or "liberal" or "conflict reducing" answer; I mean simply
a correct answer, an answer that interprets all ambiguities
correctly, that resolves all interpretive conflicts correctly,
that does everything right from beginning to end so that we can
be as confident of the answer about the law as about the prima
facie violation of the rule that starts the process.
It seems quite natural to say that the judge was correct in
ruling that I was speeding. It is not as obvious that the judge
was simply "correct" in ruling that I was properly stopped by the
police at a road-block check on illegal aliens. "Hard-line" or
"liberal" are not only something we might say in addition to
correct or incorrect; they seem to squeeze "correct" out of the
picture, to preempt the field of comment. Awareness of the
complexity involved in judging conformity to a system of rules,
something like calling an act "unconstitutional," makes us
hesitate to call such a judgment correct or true or false.
Consider our familiar example: suppose a court rules that
our old friend Jones is indeed Smith's spouse, entitled to
medical coverage. You might rejoice that it came out that way
and that you can now tell others that their live-in same-sex
40
companions are covered. And it is true that they are now
covered. But would you really say that it is, in some serious
sense, true that Jones is Smith's spouse and that fortunately the
Judge discovered it and correctly told the truth? As it is true
that I did not stop at the stop sign?
I have raised the question of the possibility that
"correctness" may not apply to complex situations when it is a
question of being in conformity with a "system" of laws or being
"constitutional." My professional legal friends are always
reluctant to characterize a constitutional decision as simply
correct or incorrect. Is it true that there was a right to
privacy guaranteed by the Federal Constitution before the court
said there was, and the court was simply correct in saying so?
Or was it really "there is from now on!"--a good example of
"judicial activism" or judicial policy-making filling in for the
absence of a "correct answer"?
Apart from the question of whether the complexity of a
system and the necessity of interpretation weakens the sense
that a judicial decision is simply correct or incorrect, there is
the familiar situation, discussed earlier, in which a ruleconformity
question has been displaced by a balancing problem, a
problem of deciding whether one alternative is better than
another.
Is there, in the end, a correct answer to a balancing
question or to questions like whether capital punishment or
abortion or the exclusion of religion from public education are
41
good things? We enter into the hazardous domain of "value," a
domain in which, we are told, it is archaically elitist to
suggest that anyone is really right or really wrong, or more
right or wrong than anyone else, in which the claim that your
view is the correct one is dismissed as an expression of dogmatic
intolerance. I am not going to argue the matter here. I will
only point out that if you think there are indeed correct answers
to such "value" or "moral" questions you will want judges who are
properly attuned to them and you might see "moral correctness" as
a qualification for appointment, displacing "moral neutrality."
And if you do not think there is an objective value or moral
"rightness," and if you think that judges must necessarily deal
with such matters, you may consider it important that judges are
appointed who at least share your own views.
It is here, baffled in the search for the clearly "correct"
answer and disenchanted with judicial answers that seem thinly
disguised partisan political pronouncements, that we sometimes
encounter the well-merited and oddly comforting characterization
of judges or decisions as "statesmanlike" or "judicious" or even
"wise". Such characterizations are hard to analyse, but they
suggest neither narrow or legalistic correctness nor mere
political partisanship. "Judicial statesmanship" must certainly
be compatible with the conception of the Rule of Law. But it
seems to offer us "wise" answers instead of "correct" answers. It
may be difficult to object to that substitution, but the hope
42
for, the dependence upon, judicial wisdom is not without its
threat to the mundane conception of the Rule of Law.
Proper Judges
I now come to the third item of the simple Rule of Law
creed: It is possible to find judges competent to give the
correct answers to the proper questions.
What is required is a practitioner who is not swamped by the
partisanship that is built into the conception of the lawyer as a
hired gun in an adversary system. I hold rather doggedly to the
conviction that, in spite of protestations, our law schools are
better at training lawyers than preparing judges for their
functions. But in any case it is clear that a judge is not
supposed to be an advocate for a client, preparing briefs and
arguments--"opinions"--for a partisan position. He is supposed to
be--and here we have trouble describing it--neutral or nonpartisan
or impartial, or unbiased, or objective, or whatever we
settle on as fitting for the agent of the rule of law in the
midst of a distracting gaggle of partisan advocacy.
So we can expect to hear, and will not be disappointed in
the expectation, the annually rediscovered shocking insight that
all men and women are human, prone to error, to bias, to
subjectivity, to neurosis, and therefore, that to be a Judge is
impossible. In its more pretentious form this insight is decked
out with tattered philosophical and sociological fragments--the
43
mind forever shut out from the world of things-in-themselves,
warped into merely human categories, culture-conditioned,
linguistically blinkered, sex and class distorted, ego-centric.
In the ordinary world we occasionally hear the cry "kill the
umpire!" but in that world we are seldom told that, since we are
human, baseball is impossible or that umpires should be home-team
activists--or are, in fact, if they would only admit it. But in
the more richly imaginative academic world ...Judges? Objective?
Who? Whom? We are all partisans... the familiar half-baked
academic enlightenment that, in students, we call sophomoric. I
am not going to take this position seriously. Whatever we are--
including human and ego-centric and all that--we are capable of
being scientists and doctors and referees and umpires and even
judges. The Rule of Law is the kind of game that can be played
with the kind of people we are--properly selected, properly
educated, properly encouraged. If we fail here it is not because
we are asking humans to behave like angels.
The real difficulty is with the theory of judicial
obligation, with the delineation of the judicial task, with the
mastery of the interpretive art from the point of view not of the
lawyer but of the judge. There is a radical difference between
the perspective of the lawyer and the perspective of the judge.
The lawyer is someone with a client; the judge is someone with a
problem. But I remember a newspaper account of an interview with
a newly appointed appellate court Judge. "I've been a civil
liberties lawyer," he said, "and I will go on being a civil
44
liberties lawyer." No one seemed to notice the moral and
intellectual absurdity of that remark.
There may be judges who have an inadequate understanding of
their function. There may be an occasional rogue judge who
indulges himself in the arbitrary exercise of his discretion.
But more common, more troublesome I think, is the judge who
shares a pervasive utilitarian bent, who believes that one is
always to do, in any particular case, whatever he thinks will
promote the greatest good and that, in the end, one is to bend
even the apparent requirements of the law to the advancement of
the "good" as one--who else?--sees it. So that even if there is
what I have called a "correct" answer, the judge, as a moral
activist, should, it is said, provide a better answer. He should
be "result oriented," not neurotically fixed on mere correctness.
The "proper judge" called for by the simple rule of law
creed is not an impossible dream. But everything does turn on
his education (Law School education is not a cheering spectacle)
and on the judicial theory with which he approaches the
inevitable discretion that any complex system of rules imposes
upon its administrator or guardian.
***********************
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I began with a delineation of the basic Rule of Law creed,
according to which the court deals only with questions of ruleconformity,
pronouncing correctly on the legality or
constitutionality or legitimacy of actions, speaking through a
special class of persons trained and competent to practice the
interpretive arts that serve the administration of the rule of
law, restrained by self-discipline from the temptations of policy
making, leaving that to those whose proper political function it
is.
In short order the painful inadequacy of the creed became
apparent, essentially because of the irrepressible ubiquity of
the policy or balancing question. The naive "rule of law" image
of the judicial umpire gives way to the more realistic one of a
rhetorically constrained political agent making policy decisions.
But if, in this conflict, the activist view seems to carry
the day, it does so at a price.
First, by dissolving a rule-conformity into a policy
question it strips the mantle of "legitimacy" from the political
process. "Constitutionality" itself is the concept of ruleconformity
writ large and it lies at the basis of American
governmental legitimacy. The President was able to say, as he
reluctantly prepared to enforce a school desegregation order upon
a recalcitrant southern state, that "constitutionality" over-rode
judgments of policy and that he was pledged to defend a
constitution that was something more than the mere policy views
of nine non-elected judges. As a society we are disposed to play
46
by the rules even if it means we may lose a game. But not if we
think the umpire is making policy decisions in the guise of
calling strikes. Respect for the Court and acknowledgment of the
need to abide by its decisions--a social habit of immense
utility--rests on the naive view of its function as the guarantor
of legitimacy, as the enforcer of the Rule of Law.
Second, the displacement of rule-conformity by policy
questions strips judicial review of its compatibility with
democracy. There is nothing undemocratic about a court, even an
unelected court, enforcing the rules of the constitution against
violations by elected legislatures and presidents--any more than
it is undemocratic for police to enforce traffic laws against
citizen-drivers. It is a different story if judicial review
permits the court to have the last word not on rule-conformity
but on policy questions. If the activist view is right, the
acceptance of judicial review by a democratic polity rests upon
ignorance of what the court is really doing. Even some activist
judges, aware of this difficulty, go to a lot of trouble to
maintain publicly that they are not making policy. The plea for
judicial "independence," on the activist view, is a disguised
plea for "undemocratic" judicial supremacy.
Third, the activist view strips away the notion that judges
are to be chosen--and respected--for some "professional" judicial
character, for their objectivity or neutrality, regardless of
their underlying political inclination. We are, perhaps,
increasingly open in our concern about a judge's politics, but
47
there is still a feeling that we really shouldn't be, that it is
important to have a disinterested referee, not a committed
liberal or conservative warrior. On the activist view good
politics may outweigh mere technical competence. But it is a
testimony to the strength of the Rule of Law position that we are
deeply reluctant to strip the court of the aura of objectivity
and policy neutrality upon which its unique position depends.
Fourth, the argument that we should submit to the
jurisdiction and judgment of International Tribunals or World
Courts loses, on the activist view, whatever force it might enjoy
under the fundamentalist view. Why put ourselves at the mercy of
political judgment by foreign judges whose political balancing
comes pompously disguised as objective pronouncements about what
"The Law," or International Law, or a Bill of Human Rights
requires?
The difficulty is that respect for the Rule of Law, for the
pronouncements of Courts, seems to rest upon popular
misconception about the whole business. What I have called the
fundamentalist or the naive view is, more or less, the general
view. Insiders generally may not share that view, but may well
think it a good thing that the public has the standard illusions.
Lawyers are, after all, the clergy, the beneficiaries, of this
particular religion, and hesitate to de-mythologize aloud on
their own territory. I have even heard lawyers who can explain
with great zest how judges in their solemn robes are really
"politicians in drag" declare publicly, without blushing, that
48
the glory of our system is our non-political Rule of Law
presided over by a Judiciary whose independence must be protected
against the intrusion of politics.
De-mythologizing may be great fun, but it is not without
cost. An unabashed Activism must eventually pay the full price
for the abandonment of the fundamentalist Rule of Law conception.
It would, if understood, undermine the respect upon which the
constitutional system and the Rule of Law depend. That respect
can be protected or restored only as Activism retreats from its
own fundamentalist or unrestrained policy-making view. And that
is why the story cannot end here but must move, as I will now
suggest, towards a theory of selective intervention.
**************
PART TWO
The Fundamentalist view of the Rule of Law cannot survive
the activist challenge; its basic propositions are vulnerable to
skeptical attack; but rejecting the view exacts a price we are
reluctant to pay. In this situation, unwilling to continue to
argue for the truth of the fundamentalist view and unwilling to
accept the price of abandoning the traditional ceremonial
empowerment of the judicial order, we may take a clue from what
happens in the life of religion. We discover that the fate of
religion does not depend on the fate of fundamentalism. It does
49
not depend on the truth of the assertion that Mrs. Lot was turned
into a pillar of salt. It may be better served by a nonfundamentalist
reading that if you insist on looking back in
longing to the pleasures of your dubious past you may become,
like Mrs. Lot, monumentally bitter--a more profound insight and,
no doubt, what the inspired creator of the parable really
intended. So I will now turn from the hopeless defence of the
fundamentalist position to the delineation of a more complex
conception of the Rule of Law.
"Why bother?" you may well ask. Why not, since I am
treating this as a "religious" problem, go directly from a
refutation of the fundamentalist position to an acceptance of an
honest atheism, an unabashed and eager activism? Because, I
suppose, I consider an atheism based on a refutation of
fundamentalism as just another case of fundamentalism, as the
same error in another direction, as the same missing of the point
that, clumsily served by fundamentalism, is worthy of being
better served and defended. And besides, I was bitten by
Dostoyevsky when I was young, and I still worry about the
Smerdyakov syndrome. You will remember that his highly cultured
half brother, Ivan, went around saying "If there is no God,
everything is permitted." Ivan concluded that everything was
permitted, but having been raised a gentleman, continued to act
more or less like a gentleman. But Smerdyakov was not raised a
gentleman, and having heard on Ivan's authority that everything
was permitted proceeded to do what no gentleman would do. He
50
killed his father. There may be some Smerdyakovs around who,
having heard that the Rule of Law is a fairy tale, may conclude
that all judicial bets are off and seek judicial appointment.
To put the matter in less Dostoyevskian terms, the rejection
of Rule of Law fundamentalism seems to unleash a kind of naive or
crude fundamentalist Activism. It seems to convert the discovery
of the existence of policy-discretion in administering the law
into a license to indulge in unabashed policy-making, to become
substantially "result oriented," restrained only by the need to
avoid giving too much scandal. It is sad that one should escape
one form of fundamentalism or naivete only to fall into the
embrace of another. So I will try to sketch a defence of a
tenable, non-fundamentalist Rule of Law position. My hope is to
rob fundamentalist Activism of some of the fruits of its victory
over its fundamentalist opponent by suggesting the constraints
that a more sophisticated version of the Rule of Law position can
oppose to, can defend against, an unrestrained Activism. And, by
so doing, to lessen the great price we must otherwise pay for the
weakening of the conception of the Rule of Law in its
Fundamentalist form.
The Rule of Law view, as I have said, rests heavily on the
theory of separation of powers. This is seen as pre-supposing
functional differentiation. Each tribunal or branch of government
is to limit itself to its own kind of task, not to intrude on the
function of another. The prohibition against a Bill of
Attainder, for example, is an explicit ban against the
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performance by a legislature of a function reserved for the
judicial branch--finding someone guilty of a crime. We worry
about the President's possible invasion of the war-declaring
function of Congress, as we might worry about legislative
meddling in the professional conduct of the war properly under
the direction of the President as commander-in-chief. It is the
function of the Regents, not of the legislature, to govern the
University, and the legislature may find, to its frustration,
that it cannot hire or fire a professor. This is all very
familiar, and I need not parade examples.
The justification for the separation of powers is not only
the wisdom of avoiding undue concentration of power but also the
fact that different kinds of tasks take different skills and are
best carried out by institutions adapted to those tasks. We may
think laws best made by gregarious types who like to run for
office and please constituents, not by cerebral law school
graduates who are good at long written arguments and who end up
in or around courts. Different characters for different roles,
different procedures, different recruitment, different training,
different discipline, differently cultured--characters who will
be content to play their own parts, for which they are specially
or even uniquely suited, in a great division of labor. It is in
such a context that a violation of the separation of powers, of
functional differentiation, is seen as a major sin, an insult to
the dignity of human interdependence, and not merely a case of
jurisdictional imperialism. So, just as a legislature is not to
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try someone for breaking a law, a court is not to make, modify,
amend, or improve a law.
But merely to state this is to make us aware of how much
the purity of this functional differentiation scheme has
become sullied--Legislatures conducting foreign policy, staging
quasi-judicial trials or investigations, Courts administering
schools, prisons, employment policy, Administrative agencies
making masses of rules indistinguishable from laws and conducting
trials almost as if they were courts. We may still classify
tribunals in traditional ways, but functional purity has long
been lost. Messy, perhaps, and even sad; but too late to weep
over.
However, there is a sibling notion, very American, and very
much alive--our familiar "checks and balances." It shares with
"separation of powers" a hostility to the concentration of
political power and to its untrammeled exercise. But it has no
commitment to functional distinctiveness. In this respect it is
like "distribution of powers," referring to the allocation or
parcelling out of power among a myriad of jurisdictions--federal,
state, local--without functional concern. "Checks and balances"
seems, in fact, to suggest a general overlapping or duplication
of function. The same demand is made over and over again in
different contexts, before different tribunals. Everyone seeks
the most accessible or sympathetic forum, altering the argument
as required but pushing the same point. If the school board
doesn't give you what you want, you try to get it from a court or
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a legislature. Social policy is what emerges gradually and
cumulatively from a gauntlet of decision-making tribunals, each
modifying the other, none completely dominating the scene. The
courts are said to be part of this complex system, concerned, as
is every part, with "policy," required by tradition and some
special circumstances to put its arguments in a judicial
rhetorical form. It works under special institutional
constraints, but it is part of the political process, not apart
from it, part of the process by which tribunals check and balance
and offset each other.
It might have seemed strange, not too long ago, to include
courts in the political hurly-burly. But things have changed.
Readers of classical detective stories will remember lawyers as
stodgy conservative types, bright enough to read wills to
crestfallen family gatherings, honest, upright, seldom inclined
to take liberties with tradition. They did not go into the
practice of law in order to reform the world by an imaginative
employment of judicial tactics, did not see the court as an
instrument of change or as a battlefield in a war against the
established order. But now! Hordes of lawyers debouch from
the portals of law-schools, flooding the country, dedicated to
causes, to change. They are not heading to courts in order to be
referees, above the struggle over policy. They are going where
the action is, where you can make a political difference without
being elected or climbing a long bureaucratic ladder. They are
heading for one of the places where the law, if not made, is at
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least changed or reshaped, to where the benighted legislature
(also lawyer-infested) can be checked and the obdurate executive
balanced--to one of our more accessible powerful political
institutions in a system of checks and balances.
The upshot is that "checks and balances" may capture the
spirit of our situation more accurately than does "separation of
powers." To the extent that it does, "functional distinctness,"
the conception of a unique judicial function tied to a special
class of judicial questions, fades into the background. But it
does not altogether bow out of the picture. It still has a
significant role to play.
We should remember that we are, after all, talking about
courts and that courts are rooted in the great traditional task
of deciding whether someone has broken a law or committed a
crime, that the trial that looms so large in the popular mind is
still something that courts are engaged with, day in day out, and
that, in that storied world, functional uniqueness is most
clearly demonstrated. Here, the fundamentalist Rule of Law view
is not to be dismissed simply because of complications that may
arise at the more problematic appellate level.
The persistent strength of the fundamentalist model is
rooted in its simple appropriateness at this working level. And
it is because of this appropriateness that the court gets, almost
uniquely among political institutions, the great moral authority,
the moral capital, it carries with it and spends when it starts
to play more complex games. We start with the image of the
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impartial judge or referee and continue to respect and defer to
him as a referee even after he has become, without changing
uniform, a player on the field. But before that, we expect from
the court or judge reliable predictability, an absence of
judicial surprises; policy novelty, originality, is out of place;
imagination an intruder. In this world we should expect that the
claim that the law requires that a same-sex lover be treated as a
"spouse" would be received with "Quit your kidding. If you want
that, get the city council to change the law."
It is beyond this level that the temptations of policymaking
flaunt themselves. We move into the world in which the
functional differentiation of "separation of powers" yields place
to checks and balances. Without distinctive functions, the
injunction "Do not overstep your function!" loses its point. In
the world of check and balance what is there to do but check and
balance? What is left of the old sense of limited role?
To sum this up in terms that I have used earlier, within the
separation of powers framework, the unique function of the court
is to confine itself to questions of the form "Is X in accord
with the Law?." In the check and balance framework, questions
are normally of the "Is A better than B" form, that is, questions
of "policy." The necessary involvement of the court with policy
questions means, as I have argued, the defeat of the
fundamentalist Rule of Law unique-function view and the movement
into judicial "balancing" in a world of checks and balances. And
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the question now is about how the courts should behave in that
world.
At this point we encounter the familiar notion of "judicial
self-restraint." It is frequently coupled with "strict
construction" and "original intent" in the anti-activist litany,
but it introduces an interesting new note. We move from languagecentered
notions (meaning, intent, construction,
interpretation...) to concern with the attitude--psychological or
political-theoretical--of the judge toward his function, and it
is precisely here that the serious non-fundamentalist Rule of Law
position must establish itself. In the end, and I stress this
point, the Rule of Law must be based not on the theory of
language but on political theory.
We begin with "self-restraint," a notion that is almost
gratuitous when the court is acting within the "separation of
powers" framework. There, it is a reminder to stick to the proper
question, to its own non-policy function. And also, perhaps, a
warning against foolish zeal, against losing a sense of "de
minimis," against pushing things to absurdity. As when a court
finds that the equal protection clause of the Fourteenth
Amendment prevents the holding of a father-son or father-daughter
banquet, or that the First Amendment prohibits a moment of
silence at the start of the school day. Absurdity always lurks
in the vicinity of a foolish consistency, and we are not required
to be absurd. Urging self-restraint against that might, if it is
sadly necessary, make sense.
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But we cannot seriously accept that in a "balancing" world
the court is to take "self-restraint" as meaning that the court
is to turn a deaf ear to the pervasive invitation to join in the
game of policy-formation. Such judicial minimalism would reduce
the court, as an institution, to triviality, and no one, I think,
who has any conception of the relation of our courts to our other
political institutions would seriously defend such a position.
Self-restraint remains an important notion but it needs to be
supplemented or even supplanted. What we need is a guide to the
exercise of restraint, a consideration of the circumstances that
require or justify judicial policy-making. What we need, in
short, is a well-considered Theory of Selective Intervention. I
will not try to develop such a theory here but I will present a
small sample of the sort of things it should deal with:
1. The court is about the only institution in a position to
deal with jurisdictional conflicts between state and federal and
between administrative and legislative tribunals or agencies.
Can a president or governor refuse to spend what a legislature
has appropriated ? Can anyone order a legislature to raise
taxes? Can the department of labor order a university to hire
someone? Should a court extend spousal coverage to a same-sex
lover? Questions of this sort come up all the time; they are
policy questions. The court is appealed to. Can it refuse to
decide who should decide what?
2. The court is expected to exercise more policyresponsibility
in matters closely related to the justice system--
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adequacy of process, trials, evidence, punishment, jails, etc,--
than in other areas. Should it not?
3. Should the court try to remedy what might seem to be a
structural failure? Redistricting is called for, but
legislatures are supposed to do it themselves, or to themselves.
Naturally, they don't. The court finally decides, on policy
grounds, to find a way to put an end to a sort of scandal that no
one else could deal with. Improper activism? Wise intervention?
I distinguish such structural difficulties from situations in
which the "barbaric" state of public opinion is deemed to be an
obstacle to enlightened social policy. If the people are too
backward to abolish capital punishment, should the court do it?
I do not consider public opinion a structural obstacle, but some
might. Should the court?
4. Should the court do the country a service by taking on
questions that seem to be too difficult for elected politicians
to handle? Sometimes the whole country seems to turn, as with a
single neck, to the court, imploring it to handle matters like
abortion or affirmative action that no one else wants to get
burned by. Is there a "hot potato" function?
5. More respectable perhaps is the assumption by the court
of the role of the Roman Tribune, the special guardian of the
weak, the oppressed, the minority, the group unable to work the
political process to its own salvation. Is it to act as an
additional check against the powerful, to tip the balance,
sometimes, in favor of helpless virtue?
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6. The court is sometimes thought to have a policy role in
bringing the law and constitution "up to date." The constitution
is several centuries old and, it is said, if it is to be a living
document and not an irrelevant antiquated charter it must be
reinterpreted, adjusted to modern times. This point bears chiefly
on "constitutional" provisions that can only be formally changed
by the cumbersome process of amendment, and since that is really
impractical it may be said to be up to the court to effectively
modernize the constitution by interpretation. This sounds
reasonable, but it is not without problems. A new situation does
not always require changing old rules. The ancient "Do not
lie!" can be held, without change, to cover "Do not lie on the
telephone!" "Do not Xerox without permission" does not put a
strain on "Don't steal." Our ancient "freedom of speech" seems
still elastic enough to cover lots of modern ground. Deciding
whether a rule covers a new instance, as discussed earlier, goes
on all the time. But beyond this sort of thing, is the court,
acting on its sense of what modern America requires, to bring the
constitution up to date by deciding that we can no longer afford
freedom of the press, that we should ignore the right to bear
arms, that we should curb abortions by proclaiming that a fetus
is a person, that "color-blind" should be replaced by
"proportional?" Do we want the court to be a surrogate
constitutional convention?
7. Finally, I list among these random items a position that
even conservative anti-activism warriors might approve of. I
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call it "corrective activism." Whenever the court has been
living through a period in which it has been accused of blatant
activism, and another President succeeds in re-coloring the court
with judges of a different political complexion, we may not be
treated immediately to the demonstration of a non-activist court
at work. First, it may be thought necessary to undo the activism
of the previous court. Should the new court accept and protect
the policy excesses of the late liberal or conservative court?
Of course not! So first, a brief period of "corrective activism"
to get everything back to where it was supposed to be before they
messed it up. But the agenda of corrective activism, even if you
agree with it, is a program for a long haul, and a court so
engaged will look like just another activist court.
I list these familiar problems to suggest a range of
questions to which "judicial self-restraint"--if that means more
than "be careful"--is hardly an acceptable answer. It is not an
answer required explicitly or even implicitly by the constitution
itself. It is not required by linguistic or legal or political
or moral theory. In the world of checks and balances, out from
under the limits of "separation of powers" what is needed by the
court is some practical and theoretical wisdom about "selective
intervention." A confident sweeping "activism" would be fun, but
irresponsible. A dogmatic identification of the "rule of law"
with a fundamentalist or even puritanical eschewing of all
judicial decision making beyond "rule-conformity" would be an
unjustified form of self-denial, a form of irresponsibility. If
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we really want to explain it all to those who yearn for "the rule
of law and an independent judiciary," we need to go through the
traditional myth, through the demythologizing process, to end
finally with an understanding of checks and balances and the
theory of selective intervention. Such a theory should appreciate
the relative merits of legislative, administrative and judicial
institutions in terms of the intelligence and sensitivity that,
in their contemporary form, they bring to the varied tasks of
government. Our judicial institutions, culminating in the
Supreme Court, may well be our best hope for injecting some
reflective wisdom into our public life, and there is really no
canonical theory above partisanship that stands as a bar to
"selective intervention."
"Judicial activism," as a reproach, might re-emerge as the
tendency to overstep the limits of a reasonable theory of
selective intervention. Lest this appear too bloodless an
outcome, I suggest that it really preserves the point that
generates the greatest indignation among critics of activism.
They are likely to be more outraged that a court would presume to
extend spousal rights to same-sex lovers than over that result
enacted by the city council. A legislative decision moving from
non-discrimination toward "racial balance" might, even if
opposed, be accepted with relative equanimity compared to the
fury evoked by a court moving in that direction by a supposedly
non-political exegesis of "equal protection." Similarly with
questions like capital punishment and abortion. We may be, in
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short, prepared to accept at the hand of the familiar political
process what we are unwilling to accept from an activist court
taking the matter out of our hands. So the cry "a court shouldn't
be doing that!" can still arise with undiminished fervor, but we
can focus more clearly on "why" or "why not" rather than on
questionable abstract views of the process of construction or
interpretation. An "activist", it is worth repeating, is not
simply a judge who is, unavoidably, involve in the policy world,
but rather, a judge who oversteps the limits of a reasonable
theory of selective intervention. The development or delineation
of such a theory is, under present circumstances, among the more
urgent tasks of legal or constitutional theory.
Any legal system is at least two-layered. There is a set of
positive rules or laws--written laws and written constitutions,
and there is a set of rules and principles about those rules, and
they are usually neither explicitly nor formally enacted. They
are, nevertheless, a fundamental part of the legal order, and
they are not to be waved aside as if their intrusion into the
world of positive law is a result of judicial misconduct.
The power of the court to declare a law unconstitutional is
merely implicit; "separation of powers" is not mentioned in the
constitution; "strict construction" and "original intent" as
proposed guides to the court are not mentioned in the
constitution; that the court, in interpreting a law, should try
to carry out the intent of the lawmaker, is not mentioned; that
the court has a special role in protecting the "federal system"
63
is not explicit...these are examples, a small part of the context
within which the constitution and the positive law exist and make
sense.
The strongly urged view of some opponents of "activism" that
the court should stick to what is explicit and avoid all
dependence on the what is implicit in the "spirit" of the
constitution or the "Higher Law"--that view is itself an argument
about an implicit part of judicial theory and does not enjoy a
"preferred position" in the field. What is implicit is often
crucial. For example, the constitution speaks of the
"legislative power." It does not define it or tell you what it
means. It does not say that Congress has the power to
"investigate," but it certainly makes sense to say that the power
to make laws implies the power to investigate the need for laws,
even though not explicit.
Again, the legislative power is, presumably, the power to
make laws. Is a "law" anything the legislature chooses to enact?
Or does a "law" have certain characteristics so that only what
has those characteristics--enacted or not--is a law? Suppose
there is a long tradition that a law is a reasonable act of the
lawmaker aimed at the public good. Would not a court sometimes
have to say "this is arbitrary and unreasonable and therefore not
a valid law?"
Readers of Paradise Lost will remember that Eve, confronted
with a divine command, was led to think about it and concluded
that a command to avoid knowledge of good and evil simply made no
64
sense, was unreasonable. "Such prohibitions bind not!" she
declared, firing an opening shot in the eternal battle between
the sovereign Will and the demands of Reason. It is no longer a
very original sin when a court today rejects a governmental law
or act as unreasonable, even though an enemy of judicial activism
might condemn the frustrating of the sovereign's will by such an
appeal to the higher law. Eve may not be celebrated as the patron
saint of judicial review, but the Rule of Law must include
implicit elements of the Higher Law that the Court is to
incorporate in the legal order, not by a rebellious bit of
"activism" but by a necessary act of judicial piety. "The Higher
Law," implicit in any system, is a reminder that even the
Sovereign Will cannot altogether escape the demands of Reason,
although even as we seek to restrain the governing will within a
tight structure of rules, we come to realize, even if we are
devoted to the Rule of Law, that we cannot write it all down and
do just what it says.
The defence of the Rule of Law against Judicial Activism is
fought in two lines of trenches. The outer line is what I have
presented as the fundamentalist position. I have tried to show
that, in the end, that position cannot be successfully defended.
The battle, however, does not end there. The fall-back position
is "judicial self-restraint." But as functional distinctness and
the separation of powers give way to "checks and balances," I
have suggested that "self restraint" must be displaced by
doctrines of "selective intervention." Conflict between the moods
65
of activism and restraint will continue, but the argument should
focus on the appropriateness of intervention in different kinds
of cases rather than on positions--like "strict construction" or
"original intent"--involved in the old fundamentalist view.
I confess to being rather fond of the old fundamentalist
Rule of Law view and even find myself wishing it were all true.
It is not my fault that it is not and that we must be satisfied
with the consolations of thoughtful selective intervention. But
there is also something satisfying in the realization that
Judicial Activism is not merely or necessarily a form of willful
misbehaviour but that it grows out of a shared realization of the
inadequacy of Rule of Law Fundamentalism and that its proponents,
if they do not succumb to the temptations of their own
Fundamentalism, can join in a common development of the theory
and practice of Selective Intervention. For that is the task that
faces us after we stagger out of the trenches of yesterday's
battle.
***********************
Joseph Tussman
Berkeley